COUNTERTERRORISM SINCE 9/11

COUNTERTERRORISMSINCE 9/11Evaluating the Efficacy of

Controversial Tactics

BY NICK ADAMS, TED NORDHAUS AND MICHAEL SHELLENBERGER

T H E S C I E N C E O F S E C U R I T Y

A p r o j e c t o f t h e B r e a k t h r o u g h I n s t i t u t e

S P R I N G 2011

COUNTERTERRORISMSINCE 9/11Evaluating the Efficacy of

Controversial Tactics

BY NICK ADAMS, TED NORDHAUS AND MICHAEL SHELLENBERGER

4 3 6 1 4 T H S T R E E T, S U I T E 8 2 0 , O A K L A N D , C A 9 4 6 1 2 ,

P H O N E : 5 1 0 - 5 5 0 - 8 8 0 0 W E B S I T E : w w w. t h e b r e a k t h r o u g h . o r g

www.thebreakthrough.org

TABLE OF CONTENTS ....................................................................3

EXECUTIVE SUMMARY..................................................................4

Key Findings ...........................................................................................4

INTRODUCTION.............................................................................6

EVALUATIVE METHODS .................................................................7

Previous CT Evaluation.............................................................................7

Our Approach ..........................................................................................7

TACTICS IN CONTEXT: THE STRATEGY AND CHALLENGES OF COUNTERTERRORISM 10

The Evolution of U.S. CT Strategy ............................................................10

The Emerging Counterterrorism Strategy ...................................................13

Operational Challenges to CT: Sorting Information, Coordinating Intelligence 14

EVALUATING CONTROVERSIAL COUNTERTERRORISM TACTICS ........16

Expanded Surveillance and Search Tools ..................................................16

Ethnic/Religious and Behavioral Profiling .................................................23

‘Enhanced Interrogation Techniques’17 ....................................................28

Detention and Prosecution of Terrorism Suspects ......................................35

DISCUSSION AND CONCLUSIONS .................................................40

RECOMMENDATIONS...................................................................41

AUTHORS’ NOTE .........................................................................43

WORKS CITED ............................................................................44

ENDNOTES .................................................................................46

EXTENDED BIBLIOGRAPHY...........................................................48S P R I N G 2 0 1 1 C O U N T E RT E R R O R I S M S I N C E 9 / 1 1

TABLE OF CONTENTS ..............................................................3

EXECUTIVE SUMMARY ............................................................4

Key Findings ...................................................................................4

INTRODUCTION......................................................................6

EVALUATIVE METHODS............................................................7

Previous CT Evaluation ......................................................................7

Our Approach ..................................................................................7

TACTICS IN CONTEXT:

THE STRATEGY AND CHALLENGES OF COUNTERTERRORISM ..........10

The Evolution of U.S. CT Strategy .......................................................10

The Emerging Counterterrorism Strategy ..............................................13

Operational Challenges to CT:

Sorting Information, Coordinating Intelligence ..........................................14

EVALUATING CONTROVERSIAL COUNTERTERRORISM TACTICS .......16

Expanded Surveillance and Search Tools .............................................16

Ethnic/Religious and Behavioral Profiling .............................................23

‘Enhanced Interrogation Techniques’ ...................................................28

Detention and Prosecution of Terrorism Suspects ...................................35

DISCUSSION AND CONCLUSIONS .............................................40

RECOMMENDATIONS .............................................................41

TABLE OF CONTENTS

AUTHORS’ NOTE 43WORKS CITED 44ENDNOTES 46EXTENDED BIBLIOGRAPHY 48

C O U N T E RT E R R O R I S M S I N C E 9 / 1 1 S P R I N G 2 0 1 1

4

In the wake of 9/11, the U.S. government employed several new counterterrorism (CT) tactics,

some of which aroused a great deal of controversy. The controversial tactics included ‘enhanced’

interrogation, preventative detention, expanded use of secret surveillance without warrants,

ethnic/religious profiling, the collection and mining of domestic data, and the prosecution of terror

suspects in military tribunals. While there has been great debate over the morality and legality

of these controversial measures, there has been significantly less attention dedicated to evaluating

whether the tactics work to prevent terrorism. Even so, people on both sides of the security v.

morality/legality debate make assumptions about the efficacy of various CT measures. Here we

review multiple literatures to assess the efficacy of controversial CT tactics on their own terms,

and evaluate their potential utility within larger state security strategies that depend on intelligence

management, informant-recruiting, and maintenance of state legitimacy. We find good evidence

that controversial CT tactics may have been counterproductive in several ways: increasing the ratio

of informational ‘noise’ to terrorist ‘signal,’ undermining the state’s legitimacy among potential

civilian informants, and legitimizing terrorists’ preferred status as ‘warriors.’ In no case is there

credible evidence showing that these controversial CT measures significantly helped catch terrorists

or offered other strategic advantages outweighing their disadvantages.

Key Findings1. THE MOST EFFECTIVE CT MEASURES ARE ALSO THE LEAST CONTROVERSIAL. Across a range

of government, think tank, and media reports, experts expressed general agreement on

several elements of effective CT strategy, including: denying terrorists safe haven, drying up

their funding channels1, preventing them from accessing weapons of mass destruction,

establishing multiple layers of port and border security, undermining terrorists’ recruiting

messages, and bolstering perceptions of state legitimacy to encourage the cooperation of

bystander communities.

2. WE FOUND NO CREDIBLE EVIDENCE DEMONSTRATING THAT THE USE OF CONTROVERSIAL CT

MEASURES COULD HAVE HELPED PREVENT 9/11. NOR DID WE FIND CREDIBLE EVIDENCE THAT

CONTROVERSIAL CT TACTICS HAVE PLAYED ANY SIGNIFICANT ROLE IN FOILING PLOTS SINCE.

Though some have suggested that post-9/11 CT tactics have aided efforts to thwart terrorist

attacks, all available credible evidence suggests that the foiling of terrorist plots since 9/11 has

owed to the help of citizen informants, foreign intelligence tips, and standard police work —

a conclusion that security officials and other recent analyses affirm (Difo 2010).2

EXECUTIVE SUMMARY

5

EXECUT IVE SUMMARY

S P R I N G 2 0 1 1 C O U N T E RT E R R O R I S M S I N C E 9 / 1 1

3. WE COULD FIND NO CREDIBLE EVIDENCE SUPPORTING CLAIMS OF EFFICACY FOR CONTROVERSIAL

CT TACTICS. After an 18-month investigation and the review of well over 500 Government

Accountability Office and Inspectors General reports, declassified intelligence documents, court

transcripts, testimonials by security agents, and other documents, we could find no evidence

demonstrating the efficacy of controversial CT tactics. Conversations with top national security

and CT experts confirmed the absence of credible evidence. The burden of proving the tactics'

efficacy today lies with those who promote their use.

4. THE EXPANSION OF INVESTIGATIVE AND SURVEILLANCE POWERS AFTER 9/11 APPEARS TO COM-

POUND THE CHALLENGES FACED BY SECURITY AND INTELLIGENCE AGENCIES BY INCREASING THE

AMOUNT OF INFORMATIONAL ‘NOISE’ THEY MUST FILTER OUT TO DETECT TERRORIST ‘SIGNALS.’

Signal detection, not intelligence-gathering, failed in the run-up to 9/11 and in the case of the

would-be Christmas Day bomber. Policies allowing for easy surveillance of people who have lit-

tle reason to be suspected of terrorism have flooded security agencies with informational noise

and generated thousands of false leads that distract them from real threats. These signal

detection failures are reflected in data on the numbers of cases the FBI has recommended for

DOJ prosecution. Despite a several-fold increase in the use of expanded search and surveillance

tools, the FBI is generating far fewer cases for prosecution than they did in 2002 and many

more of them are being declined by the DOJ because they lack evidence of wrongdoing.

5. EVIDENCE SUGGESTS THAT ETHNIC AND RELIGIOUS PROFILING, DIMINISHED DUE PROCESS STAN-

DARDS, AND 'ENHANCED INTERROGATION TECHNIQUES' ALIENATE PEOPLE WHO MIGHT PRODUCE

USEFUL INFORMATION FOR LAW ENFORCEMENT. Countering terrorism requires that the state win

the battle for “hearts and minds” among bystander populations. By treating populations with

suspicion, the state may be discouraging cooperation and even reinforcing terrorist narratives

and recruitment efforts.

6. FOR THE ABOVE REASONS AND OTHERS, CONTROVERSIAL CT TACTICS HAVE BECOME INCREASINGLY

UNPOPULAR WITHIN MILITARY AND SECURITY AGENCIES SINCE 9/11. After using some ethnic

and religious profiling shortly after 9/11, many in the FBI and TSA have come to see that form

of profiling as a potentially dangerous distraction. Military and FBI leaders have condemned

the use of torture, and the CIA has all but renounced enhanced interrogation. Many retired and

active Generals, including Gen. David Petraeus, have declared the detentions at Guantanamo

Bay a security risk to U.S. troops.


In the years since the terrorist attacks of September 11, 2001 there has been great debate among

policymakers and the public over the morality and legality of controversial domestic counterterror-

ism (CT) tactics like ‘enhanced interrogation,’ preventative detention, expanded search and

surveillance powers, ethnic and religious profiling, the collection and mining of domestic data, and

the prosecution of terror suspects in military tribunals. There has been strikingly less discussion over

whether these tactics have succeeded on their own terms to prevent terrorist attacks, disrupt terrorist

networks, deliver better intelligence, or end terrorism campaigns.

Opponents of controversial CT tactics often argue that the legal and moral principles violated by

the tactics are so fundamental to American character that they should be held sacrosanct even in the

face of terrorist threats. Proponents argue that the government should make exceptions to normal

peace-time law and employ controversial CT tactics that uphold a higher morality of saving

American lives. Neither group has seriously or consistently questioned the assumptions underlying

this debate – that controversial CT tactics effectively reduce levels of terrorism. A close examination

of that assumption could dissolve this major front of American political contestation since almost

no public figure would support demonstrably ineffective (or even counterproductive) CT policies.

The implications of CT tactic evaluation, of course, go well beyond American political discourse.

The 21st century appears to be one in which nation-states will continue to be susceptible to the vio-

lent political challenges of small groups of determined militants. If these states do not continually

evaluate their tactics and approaches as they respond to disparate and evolving security challenges,

they diminish their likelihood of success in their efforts to curb future political violence while pro-

moting or maintaining other state objectives.

The paper will unfold in six sections. In Section II, we review the limitations and challenges of past

and present CT evaluation research as we articulate our approach to the task. Finding that tactical

evaluation is meaningful only in relation to some strategy, we outline U.S. CT strategy in Section

III. There, we identify strategic objectives and key operational challenges of CT – including promot-

ing state legitimacy, encouraging cooperative relationships with bystander communities,

undermining terrorists’ narratives, and prioritizing and coordinating intelligence – that can be used

as supplemental criteria for tactical evaluation (in addition to evaluating CT tactics in terms of their

ability to meet their own objectives). Section IV is the heart of the paper, dedicated to the evalua-

tion of controversial CT tactics in terms of the methods and criteria established in Sections II and

III. Section V briefly summarizes and discusses the key findings of Section IV. And finally, Section

VI closes the paper with some recommendations to policymakers and NGOs.

6

INTRODUCTION

EVALUATIVE METHODS

Evaluations of CT tactics are rare, but some do

exist (For a review see Lum and Kennedy 2006,

or Crenshaw 2009). Their scarcity reflects, in

part, understandable limitations on the scope

or design of previous CT research. Also, the

classification of information potentially relevant

for CT evaluation appears to discourage some

authors from approaching the task. Another

challenge stems from the fact that the criteria

upon which tactics can be evaluated often

depend on shifting CT strategies in which they

are embedded. We address these obstacles to

assessing CT tactics as we describe our

approach to the challenge.

Previous CT EvaluationMost previous counter-terrorism evaluations

have assessed entire national CT policy regimes

without focusing on individual policies or

tactics. By measuring numbers of terrorist

incidents or death tolls before and after the

implementation of a CT policy regime (Hewitt

1984; Department of State 2001-2008; Sheehan

2007), authors have been able to conclude that

states either failed or succeeded in their overall

efforts. However, such methods imply that

CT policy regimes are indivisible in their

composition and coherent in their effects.

The methods fail to tease out which tactics

caused a decrease or increase in terrorist inci-

dents or deaths, and risk suggesting causal

relationships to policymakers and the public

that may not exist.

Other analysts have evaluated CT policy

regimes qualitatively (Charters, 1994; Schmid

and Crelinsten 1993; Wilkinson 2001; Art and

Richardson 2007; Cronin 2009), but still rarely

go into detail about the efficacy of specific tac-

tics. When they do, their accounts are often so

historically embedded that readers may have

difficulty distilling general lessons about when

particular CT tactics might be useful or not.

Qualitative researchers’ conclusions, too (like

those of their counterparts employing more sta-

tistical approaches), tend to focus much more

attention on broad CT strategies or policy

regimes than on individual tactics.

Researchers’ focus on the evaluation of CT

strategy is not inappropriate. CT research is still

an emerging field and a case can be made that

questions bearing on strategy often deserve

logical priority to those evaluating tactics.

In fact, we employ a method of tactical evalua-

tion that takes strategic considerations into

account. But, we think focusing on strategic

questions to the exclusion of tactical evaluation

can fail to uncover those tactics that may actu-

ally be ineffective or even counterproductive for

an overarching CT approach.

Our ApproachCT policies and tactics can and should be eval-

uated individually so that counter-terrorism can

continually improve in response to evolving ter-

rorist threats. Our method for evaluating CT

tactics is two-fold. First, we ask if the CT tactic

achieves its particular aim. Second, we ask if

7


8

ondary to some CT strategies, are important for

the current U.S. strategy against Al Qaeda and

its affiliates and allies who continue to target

U.S. interests. We note, therefore, that this

paper, while its conclusions may be broadly

applicable to many CT campaigns, is specifi-

cally geared for evaluating CT tactics employed

by the U.S. against militant irhabis3 who target

the West.

In Section III we briefly outline the develop-

ment and basic shape of U.S. CT strategy and

provide further rationale for evaluating CT

tactics by the criteria we have listed above.

While we do not offer a detailed threat assess-

ment and evaluation of counterterrorism

practices (available in a forthcoming docu-

ment), we briefly describe in this section the

evolution of U.S. CT efforts from the pre-9/11

period through today and highlight elements

of those efforts with which effective CT tactics

should be compatible.

Our main analyses in Section IV pull together

the work of many scholars, journalists,

archivists, historians, think-tank analysts, and

government-commissioned investigators. While

this paper has been motivated by the relative

dearth of reports carefully evaluating CT

tactics’ efficacy – and, as far as we are aware,

the nonexistence of a single document compil-

ing those evaluations and placing them in

productive dialogue with other security

literatures – we have drawn heavily from the

few documents that do assess CT tactics.

EVALUAT IVE METHODS


the CT tactic has secondary consequences for

broader CT efforts.

In the first step, we simply ask, for instance,

whether expanding investigators’ search, sur-

veillance, or seizure powers after 9/11 has

actually allowed law enforcement and intelli-

gence agents to more easily capture terrorist

plotters. We have been able to answer this

question – and others like it – by referring to

the explicit or implicit intentions of the CT

tactic and comparing those to the effects of its

implementation as reflected in various reports

describing what CT tools have been vital in

foiling terrorists’ efforts. We also often employ

a counterfactual analysis to the events of

September 11th, asking: ‘If CT tactic X had

been used prior to 9/11 would the attacks have

been prevented?’

The second step in our evaluative approach asks

whether CT tactics (whether or not they accom-

plish their stated objectives) have secondary

consequences for broader CT efforts. We pay

particular attention to how the tactics overcome

or exacerbate the key challenges of U.S. coun-

terterrorism – gathering useful information,

prioritizing and coordinating intelligence,

promoting state legitimacy, encouraging com-

munity-generated tips and the support of

bystanders, and undermining terrorists’ narra-

tives. Some of these operational imperatives –

like intelligence gathering, prioritizing, and

coordinating – are common to virtually all CT

campaigns. The others, while potentially sec-

9

Among them are evaluations of the efficacy

of enhanced interrogation (see Rejali 2009;

Fein et al. 2006; Rumney 2005-2006), civilian

vs. military trials for terrorism suspects

(Greenberg et al 2010; Zabel 2009; Gude 2010),

airport screening relying on ethnic profiling

(Chakrabati and Strauss 2002; Press 2009;

Sandomir 2009), and data-mining techniques

(National Research Council 2008; Jonas and

Harper 2006). We review these documents

along with related government documents,

news accounts, suspect interviews, indictments,

Congressional testimony, and journalistic

investigations about terrorist plots and efforts

to disrupt them.

We also draw on history and the social sciences

to evaluate CT efficacy in a wider context.

So, for example, in considering the effects of

expanded surveillance activities since 9/11,

we employ ‘signal detection theory’ to evaluate

whether increasing informational ‘noise’ has

reduced detection of the terrorist ‘signal’. We

draw on psychological research into human

motivation to explore how coercive interroga-

tion might exacerbate unproductive adversarial

relationships between interrogators and their

subjects. In weighing the efficacy of detention

policies, we consider their impact on percep-

tions of state legitimacy in communities whose

cooperation may be vital to CT efforts. We

consider the results of mathematical models

of social learning for evaluating the efficacy

of airport profiling policies over time. And we

consider how sociological theories of labeling

and deviance may predict that terrorists would

prefer to be tried (or even plead guilty) in mili-

tary tribunals.

While CT is often imagined as a shadowy,

secretive enterprise, much of how CT functions

is known through years of court cases, news

coverage, congressional testimony, books by

high-ranking government security figures,

investigative journalism, extensive leaks and

declassifications, and countless government

oversight reports. These sources constitute a

robust body of publicly available information

describing the uses and outcomes of the CT

tactics we evaluate in this report.

A final important challenge to evaluating CT

tactics is the fact that interpreting their effects

depends, at least in part, on the broader strategy

they are meant to advance. We now turn to a

discussion of that CT strategy and the primary

challenges to its implementation in order to

identify and clarify contextual criteria by which

we evaluate CT tactics’ efficacy.

EVALUAT IVE METHODS


10


Because CT tactics impact broader CT strategy,

their efficacy cannot be evaluated only in terms

of their intended objectives. A tactic that effec-

tively meets its own objectives (e.g. destroying a

terrorist safehouse) could nonetheless be harm-

ful to CT strategy if it excludes the use of some

other tactic better able to advance strategic aims

(e.g. surveilling the safehouse and its members

to learn more about their network and their

upcoming operations). And because the imple-

mentation of any strategy is challenged at the

level of operations (between high-level strategy

and its on-the-ground tactical implementation),

tactics must also be evaluated for their role

in overcoming or exacerbating key operational

challenges. In counterterrorism campaigns –

because terrorists act covertly– a key opera-

tional challenge involves managing information

about terrorists’ movements and plans. Below,

we briefly outline U.S. CT strategy and explore

its operational challenges.

The Evolution of U.S. CT StrategyThe counterterrorism strategy of the United

States has evolved throughout the latter half

of the 20th century. In the 1960s, extremist

Islamist terrorist acts rarely affected Americans

directly. When they did, death tolls were

small and the historical, policy, and political

consequences were usually slight. Presidents

were even routinely advised to avoid engaging

directly in CT decisions since “there was little

the U.S. government could do to prevent […]

attacks, and it would be better to shield

the White House from future blame” (Naftali

2005, 45).

By the 1970s and ‘80s, however, threats from

terrorists at home and abroad had inspired the

development of CT working groups and task

forces in several bureaus of government.4 While

U.S. Presidents and Congress dedicated consid-

erable resources to uncovering and stopping

amateur militants, they also hewed closely to a

strategy of denying terrorist the attention they

needed to grow their movements (See Naftali

2005, Chapters 2 and 4). Historical precedent

had also suggested that states too eager to fight

terrorists often ceded legitimacy to militant

groups by becoming too brutal, or too repres-

sive (e.g. Argentina, Columbia). Overzealous

security measures could actually drive some

populations into terrorists’ hands. As long as

the state’s moderate course (based mostly in law

enforcement techniques) did not undermine cit-

izens’ trust in its ability to keep them safe, it did

not appear useful to act in dramatic fashion.

To many, the events of 9/11 seemed to repudi-

ate a strategy based on starving terrorists of the

attention they sought. There was no ignoring

or downplaying the atrocities. The state’s

legitimacy and reputation as a protector of its

population had been frontally attacked.

Within days, nearly every commentator inside

and outside U.S. security establishments

declared that Al Qaeda must be denied a safe

haven from which it could plot, train for, and

TACTICS IN CONTEXT: THE STRATEGY AND CHALLENGES OF COUNTERTERRORISM

11

TACT ICS IN CONTEXT: THE STRATEGY AND CHALLENGES OF COUNTER TERROR ISM


material to execute a nuclear attack (Mueller

and Center 2008; Bergen and Hoffman 2010).

Overlapping U.N. and international initiatives

have also focused on reducing chemical and

biological weapons proliferation by tracking

and regulating the international sale of danger-

ous materials. Together, these initiatives have

sought to reduce the threat of mass-casualty ter-

rorism without requiring states to protect all

potential targets at all times.6

In addition to working to secure the materials

of terrorism at their source, the U.S. has also

raised security levels at its borders and other

points of entry into the country. The formaliza-

tion of airport screening by the Transportation

Security Agency (TSA) raised barriers to more

weapons and explosives. And recent improve-

ments to the passenger pre-screening system

(discussed more thoroughly below) demonstrate

its continual (if sometimes lagging) evolution

with the terrorist threat. Despite popular

criticism that the U.S. screens too few of the

containers entering its ports, the Container

Security Initiative of the Department of

Homeland Security has also secured interna-

tional cooperation with ports around the world

to increase screening of nearly 86% of the

cargo that eventually enters the U.S. (Deflem

2010, 51). Other agencies, like the Bureau of

Immigration and Customs Enforcement and

Customs and Border Protection round out a

multi-layered defense of American borders that

includes the securing of trade routes abroad

and ports of entry at home (Ibid.).

carry out future offensives. Weeks later, with

widespread international support, the U.S. led

an air and ground campaign into Afghanistan

to root out Al Qaeda and their Taliban hosts.

Though coalition forces were not able to cap-

ture Al Qaeda and Taliban leadership who

crossed into Pakistan, they destroyed much of

the middle tier of Al Qaeda’s central organiza-

tion, crippling the group and successfully

denying it uncontested safe haven.

Security experts also agreed that terrorism

could be combated by denying violent groups

the resources they need to be successful. Taking

advantage of an international mood favoring

cooperation, the U.S. led global efforts to secure

and monitor money and weapons that could

be used by violent anti-government groups.

The Department of the Treasury partnered with

Belgium’s Society for Worldwide Interbank

Financial Telecommunication (SWIFT) to track

and disrupt a significant portion of Al Qaeda’s

funding network5. And recent reports suggest

that Al Qaeda’s Afghanistan/Pakistan organi-

zation is experiencing financial difficulties

(Levitt 2008, 8; Asharq Al-Awsat 2010).

The existence of an apparently robust network

of sophisticated terrorists amplified unrealized

fears of nuclear terrorism that had circulated

since the 1950s. In response, international part-

nerships to track and secure nuclear weapons

accelerated starting in late 2001 and, by many

accounts, have helped reduce the already low

probability that terrorists could access enough

12


President Bush and Congress also followed a

policy consensus arrived at by two blue ribbon

panels from the previous administration,

creating a Department of Homeland Security

(DHS) and passing legislation updating the

information-sharing practices of the intelligence

agencies.7 Recent reports, especially in the

Washington Post, suggest that efforts to

coordinate intelligence sharing – a key recom-

mendation of the 9/11 Commission – have

not proceeded as quickly or effectively as

planned. Although efficient information sharing

appears to depend as much on institutional

culture as design,8 organizational changes have

begun to increase the intelligence community’s

capacity to link information from multiple

sources and agencies.

In keeping with a theme that restrained

responses to terrorism had weakened the

United States, President Bush and Congress

also responded with policies seeking to give

federal investigators and intelligence agencies

expanded tools with which to do their work.

Some PATRIOT Act provisions made it easier

for federal investigators to surveil people, or

search or seize their property. While the 14th

amendment made it illegal for the government

to single out American citizens for investigation

based on their race, ethnicity, or religion, the

FBI and Immigration officials pushed against

this boundary with “voluntary” interviews

of Muslim and Arab americans and the

targeted “Special Registration” of Muslim

and Arab immigrants. The Department of

Justice also selectively detained or deported

over 700 Arab and South Asian men - many

students - for minor visa violations that typi-

cally would not have been enforced.

Though the U.S. had claimed a tradition

against domestic spying for most of its history,

President Bush signed a secret executive order

allowing the National Security Agency (NSA)

to intercept Americans’ telephonic and elec-

tronic communications to and from foreign

sources. The President also detained several

hundred men on or near the battlefields of the

“War on Terror,” foreclosed their rights to

habeas corpus petitions – disallowing them due

process rights for their self-defense in a court of

law – and created military tribun in which they

could be convicted by evidence inadmissible in

traditional criminal courts. The President, CIA,

and Department of Justice (DOJ) also worked

together to formalize a regime of physically and

psychologically coercive interrogation proce-

dures in the hope that the tools could elicit

more information from terrorists than conven-

tional interrogation techniques. The

Department of Defense (DOD) simultaneously

outlined its own set of coercive detention and

interrogation practices.

Unlike the creation of multi-layered defenses

and even the invasion of Afghanistan (which

enjoyed widespread global support), these U.S.

expansions of police and intelligence agencies’

powers contravened the older counterterrorist

wisdom that state action should preserve its


13


own legitimacy and deny terrorists rhetorical

ammunition with which to recruit followers.

But in the aftermath of the horrors of

September 2001, and amid the ongoing fears

that other attacks may be coming, such

wisdom was cast aside in favor of more

aggressive tactics.

The Emerging Counterterrorism StrategyOver time, increasing numbers of CT

researchers and strategists have come to articu-

late an approach to CT that combines some

elements of past strategies while also emphasiz-

ing the importance of winning the “hearts and

minds” of populations that terrorists would like

to recruit to their cause. Such rethinking has

often come from individuals within the

traditional security apparatus including from

General David Petraeus, General Stanley

McChrystal, General Sir Rupert Smith (UK),

Mike German (former FBI), Tom Parker

(former MI-5), Stephen Kleinmann (Air Force

reserve Colonel and former interrogator),

Matthew Alexander (former Air Force inter-

rogator in Iraq), and many more. Though U.S.

CT strategy has shifted within the last decades,

the current approach is based on the following

objectives:

¢ Deny terrorists safe haven by conducting

offensive military operations.

¢ Deny terrorists access to financial networks.

¢ Deny terrorists access to weapons of mass

destruction (WMDs) or the materials for

their production.

¢ Establish multiple layers of security

screening for people and objects entering

the country.

¢ Undermine terrorists’ recruitment

capability.

¢ Enhance perceptions of state legitimacy

among the very people terrorists would

like to recruit to their cause and win their

loyalty by:

¢ Providing these communities with

direct aid or protection.

¢ Building cooperative relationships

with them.

¢ Avoiding unnecessary casualties,

abuse, or intimidation.

¢ Encourage these same communities to

disavow and expose terrorists who may

be in their midst.

Efforts to win the support of bystanders to

terrorism and counterterrorism (bullet points

six and seven) have become more prominent

elements of U.S. CT strategy in the years

since abuses at Abu Ghraib, Bagram, and

Guantanamo prisons inflamed an anti-U.S.

backlash among many Muslims (See Sheehan

2009 for a quantitative analysis of this back-

lash). Several works of CT scholarship (an

increasingly popular field of interdisciplinary

study) have also contributed to this shift in

strategic emphasis. Canvassing the history

of state clashes with terrorists, various authors

have found that approaches which abuse or


14


repress bystander populations rarely speed the

end of terrorism campaigns and often prolong

them by transferring legitimacy from states

to terrorist groups (Hewitt 1984; Art and

Richardson 2007; Schmid and Crelinsten 1993;

Charters, 1994; Wilkinson 2001; Sheehan 2009;

Cronin 2009).

Emerging CT thought increasingly stresses the

importance of state legitimacy for CT strategy.

Establishing, maintaining and enhancing the

legitimacy of CT operations encourages reliable

reporting from communities in which terrorists

might be embedded, undermines terrorist narra-

tives charging the state with hypocrisy, and

inspires cooperation from international allies.

Legitimacy is thus seen as critical to the secu-

rity of the nation state at home and abroad.

In many ways, the newfound emphasis on

legitimacy reflects the state’s relearning of its

basic nature. Max Weber defined the state as

“a human community that (successfully) claims

a monopoly on the legitimate use of physical force

within a given territory” (italics in the original;

Weber 1946, 78). While this quote has some-

times been reduced to the state having the

“monopoly on violence,” Weber emphasizes

its “legitimate use.”

A state that uses force illegitimately — arbitrar-

ily, selectively, or for personal rather than public

interests — may undermine the basis of its

power as much as a state that fails to use force

to defend itself and its citizens against external

or internal aggressors. In the case of CT, states

that use force illegitimately risk alienating

potential citizen informants who are often criti-

cal to disrupting terrorist plots and networks.

Citizen informants provided intelligence that

helped foil many plots including those of the

Lackawanna Six in 2002, The Portland Seven

in 2003, James Elshafay and Shahawar Siraj

in 2004, Michael Reynolds in 2005, and Faisal

Shahzad in 2010 (Difo 2010).

As we evaluate CT tactics below, we will fre-

quently use elements of current U.S. CT

strategy as criteria to judge the efficacy of the

tactics. If a tactic is successful in some regard

but harms CT strategy overall – for instance,

if it is perceived as abusive or illegitimate and

causes people to think twice about reporting

a relative, friend, or neighbor engaged in

terrorist activities – its overall efficacy may be

questionable. Before we move to those tactical

evaluations, though, we must consider how

some tactics might alleviate or exacerbate

perennial obstacles to CT efforts.

Operational Challenges to CT: Sorting Information,Coordinating IntelligenceEven the best conceived strategies may falter if

their implementation is impractical at the oper-

ational level. In the case of CT, the success of

any strategy meant to root out covert militant

groups will depend heavily on the availability

and quality of intelligence about their where-

abouts and plans. Unfortunately, the quality of


15


intelligence – its relevance to other information,

truth-value, and urgency – is often not evident

at the time it is received. A detainee’s report

of an impending attack could be lifesaving

information, but it could also be a prideful

bluff or an intentional misdirection intended

to divert intelligence agents’ time and resources.

Thus, a key challenge, or perhaps the key chal-

lenge, to CT operations is the analysis, sorting,

and prioritization of information of unknown

relevance for defeating terrorists. In the lan-

guage of ‘signal detection theory’ this is the

challenge of identifying a relevant ‘signal’ in the

midst of informational ‘noise’ (McNicol 2004).

Often, the relevance of incoming information

cannot be determined without reference to

information that is housed at some other U.S.

intelligence agency. The 9/11 Commission

highlighted this as a major impediment to pre-

venting the attacks of September 11th. They

concluded that the major failures leading up

to the attack stemmed most directly from poor

information coordination among the U.S.’s fif-

teen separate intelligence agencies and a failure

to imagine and prepare for unseen terrorist

tactics like the hijacking and weaponization

of airliners (Kean et al 2004, Chapter 11).

The commission made multiple recommenda-

tions, many of which were taken up by the

Bush Administration and have already been

discussed (Ibid., Chapter 12), but their most

urgent was the restructuring and streamlining

of the intelligence community. Though some

positive steps have been made in this direction,

a recent week-long Washington Post expose

of the U.S. intelligence community, “Top Secret

America,” paints a dismal picture of the pro-

gress (Priest and Arkin 2010).

Given the dependence of CT operations on

accurate intelligence that must be sorted and

prioritized by a limited number of human

analysts, and the poor state of intelligence coor-

dination in the U.S., any CT tactic exacerbating

the challenges of the intelligence community

should be regarded with suspicion by policy-

makers and the public. Intelligence agencies

are flooded with information to analyze –

the vast majority of it just informational white

noise. If some CT tactics are increasing the

volume of this noise or decreasing the volume

of terrorist signals, they may be more harmful

than helpful to U.S. CT missions.


16


EVALUATING CONTROVERSIAL COUNTERTERRORISM TACTICS

Below, we evaluate the efficacy of several

CT tactics. A tactic can be deemed effective if

it accomplishes its intended goals, aides a CT

strategy based in part on boosting the legiti-

macy of the U.S. relative to terrorists in the eyes

of bystander populations (outlined on page 11),

and does not exacerbate the intelligence chal-

lenges inherent to CT efforts.

Expanded Surveillance and Search ToolsWithin five weeks of the 9/11 terrorist attacks

Congress passed, and President Bush signed,

sweeping CT legislation known as the USA

PATRIOT Act (an acronym formed from the

bill’s official title: Uniting and Strengthening

America by Providing Appropriate Tools

Required to Intercept and Obstruct Terrorism).

Most of the provisions of the Act, and

some accompanying revisions to the Foreign

Intelligence Surveillance Act (FISA), are

considered uncontroversial, even among civil

liberties advocates. However, the act’s

expansion of some surveillance tools and the

lowering (or elimination) of the evidentiary

thresholds investigators must meet to surveil,

search, or seize the property of Americans have

been highly controversial since 9/11, inspiring

political, judicial, and legislative contests over

their constitutionality.

But questions of the expanded search and sur-

veillance powers’ efficacy should be of greatest

relevance to policymakers, security agencies,

civil liberties advocates, and the public. Has the

eased usage of National Security Letter (NSL),

roving wiretaps, “sneak and peek” searches,

suspicious activity reports (SARs), and FISA

surveillances helped law enforcement get infor-

mation critical to CT operations that they could

not have obtained using pre-9/11 standards and

procedures? Have these loosened standards gen-

erated unintended consequences that were

either productive or counterproductive to CT

operations? Here we review the historical role

of surveillance and judicial oversight, examine

the available evidence for and against the effi-

cacy of controversial PATRIOT Act and FISA

provisions, and consider the implications of

signal detection theory for expanded search and

surveillance tools.

1 . P L O T D E T E C T I O N

We begin our evaluation of the efficacy of

expanded search and surveillance tools with

an investigation into their ability to aide in the

detection and foiling of terrorist activities.

Since these PATRIOT Act provisions and FISA

revisions were passed ostensibly in response

to 9/11, we first ask whether they would have

helped prevent those attacks in particular.

In our review of news articles and intelligence

reports we found no credible evidence suggest-

ing that these provisions would have prevented

9/11 or even resulted in better intelligence

about the plot. The 9/11 Commission Report

blamed a range of factors for the attacks —

lack of imagination, lack of understanding

the danger, lack of information sharing, and

17


either. According to our analyses of news

accounts, FBI investigation reports, and recent

studies on foiled terrorist plots, all were broken

open due to the combination of well-deployed

undercover agents, information from citizen or

undercover informants, and tips from foreign

intelligence agencies (Difo 2010).10 Search and

surveillance warrants, whose usage was eased

by the PATRIOT Act, are only known to have

been used in two cases (those of the Portland

Seven, and Najibullah Zazi11). However, time-

lines of the investigations suggest that the

warrants investigators sought and attained

would have been authorized under pre-

PATRIOT standards. The Portland Seven had

startled a local citizen with their recreational

gun use, and the FBI used an undercover

informant to discover their interest in domestic

attacks. Based on that information, the FBI

attained surveillance warrants they would have

been able to attain even before the passage of

the PATRIOT Act.

In Najibullah Zazi’s case, too, investigators did

not need the PATRIOT Act to carry out their

investigations. Their surveillance of Zazi started

based on Pakistani intelligence reports that he

had visited with Al Qaeda operatives during his

trip to Peshawar, Pakistan in 2008 (Temple

Raston 2010) .That evidence would have been

sufficient for the FISA warrants they subse-

quently used to surveil him, with or without the

PATRIOT Act or post-9/11 amendments to

FISA. Similarly, the Joint Terrorism Task

Force’s ‘delayed notification’ or “sneek and

others — none of which included the idea that

excessively high warrant standards had blocked

the ability of the FBI or other agencies to

receive a search or surveillance warrant.9 The

Commission’s report listed ten “Operational

Opportunities” the intelligence agencies missed,

from the CIA’s failure to put Khalid al Mihdhar

on a watchlist in January 2000, to the FBI

Headquarter’s failure to act on urgent warnings

about Zacarias Moussaoui raised by the

Minneapolis FBI’s offices (Kean et al 2004,

355-6). In the case of the latter, FBI HQ refused

requests from the Minneapolis FBI field office

to seek a warrant from the Justice Department

for the search of Moussaoui’s computer

because it did not identify French intelligence,

suspicious flight school attendance, and other

evidence as a malicious pattern.

The preponderance of evidence suggests

that the greatest barrier to more effective

CT remains the operational challenges to

intelligence sharing, analysis, and “connecting

the dots” (what the 9/11 Commission called

“institutional imagination”). Thus, the 9/11

Commission recommended reorganizing and

centralizing the government’s fifteen or more

different intelligence agencies to promote

institutional imagination and efficacy, but

made no recommendation to expand search

or surveillance tools (Ibid. Chapter 12).

Furthermore, our investigation into plots foiled

since 9/11 uncovers no credible evidence that

the expansion of search and surveillance tools

resulted in the discovery of those activities

EVALUAT ING CONTROVERS IAL COUNTER TERROR ISM TACT ICS

18


peek” search of his rental car would have been

permitted according to case law developed in

the 2nd and 9th Federal Circuits well before the

PATRIOT Act was even imagined.12 As Sam

Rascoff, former NYPD intelligence officer, put

it, “what’s striking about the Zazi case is not so

much that new tools were being used, but that

old tools were being used in a comprehensive

fashion, and that they were being stitched

together in a thoughtful, strategic way, so

that one tool naturally gave way to another”

(Temple Raston 2010).

Since 9/11, even as CT agents and agencies

have become more adept in their use of classic

investigatory tactics and more attuned to

patterns of suspicious behavior, they have still

failed to piece together clues in important cases.

But these failures have not been due to hurdles

posed by judicial oversight or excessively-high

warrant standards. British and U.S. intelligence

agencies who were tracking Nigerian national

Umar Farouk Abdulmutallab before he

attempted a jet plane bombing on Christmas

Day, 2009 were not impeded by high warrant

standards nor did they need PATRIOT Act

provisions to discover through an informant

(i.e., Abdulmutallab’s father) that he might be

involved in a terrorist plot. In Abdulmutallab’s

case, as with 9/11, intelligence officials simply

failed to put together various clues including

communications with American provocateur

Anwar al-Awlaki, a prior warning to the U.S.

embassy by Abdulmutallab’s father, and

intercepted Al Qaeda communications that a

Nigerian would be involved in a future attack.

2 . D ATA M I N I N G

Three weeks after the 9/11 attacks, as it became

apparent that many of the hijackers had lived

and trained in the United States, President

Bush signed an Executive Order making it

easier for the National Security Agency (NSA)

to listen in on communications between

U.S. citizens and foreign callers whom the NSA

“reasonably suspected” of terrorist involve-

ment. And, the executive order allowed

the NSA to operate these wiretaps without

warrants or judicial oversight (i.e. from Federal

Intelligence Surveillance Courts, FISCs).

The NSA had been fairly successful intercepting

the signals of known U.S. enemies during the

Cold War. Now it was being asked to identify

America's enemies among the billions of people

in and out of the U.S.

But this NSA-led “President’s Surveillance

Program” (PSP) met with significant chal-

lenges. First among them was the difficulty of

managing and sifting through the giant masses

of information (Bamford 2008). In response,

the NSA developed computer algorithms

to query data for transactions (e.g., fertilizer

purchases) and communications (e.g., with

Pakistanis) that set off “red flags” as defined by

human analysts. Emails containing suspicious

words and phrases like “bomb” and “conven-

tion center” might trigger a red flag. If enough

red flags were associated with a single person,


19


the NSA might single that individual out for

additional surveillance by human analysts.

All of this meant that the PSP’s information

trawling could only work if terrorists

communicated about their plans on the phone

or through email using very literal language.

But, as anyone who has ever discussed

a surprise party within earshot of the guest

of honor can attest, it is easy for callers to

substitute unrelated verbs and nouns for those

that might reveal their plot. Human languages

are famously subtle and labile when secrecy

is a factor in communication.

An evaluation of the PSP conducted by the

Offices of Inspector General (OIG) for the

Department of Defense (DOD), DOJ, CIA

and the Office of the Director of National

Intelligence (ODNI) is damning in its faint

praise of the program. Unable to cull together

hard evidence of the program’s efficacy, the

Inspector General’s report relied most heavily

on the testimony of intelligence officials and

analysts. According to the report: “NCTC

[National Counterterrorism Center] analysts

and ODNI personnel described the PSP infor-

mation as ‘one tool in the tool box’ or used

equivalent descriptions to explain their view

that the PSP information was not of greater

value than other sources of intelligence”

(Department of Defense et al 2009). “In sum,

the DOJ OIG found it difficult to assess or

quantify the overall effectiveness of the PSP

program as it relates to the FBI’s counterterror-

ism activities. However, based on the interviews

conducted and documents reviewed, the DOJ

OIG concluded that although PSP-derived

information had value in some counterterror-

ism investigations, it generally played a limited

role in the FBI’s overall counterterrorism

efforts” (Ibid.). The bias of interviewees,

though, may have contributed to suggestions

that the program was worth continuing despite

its undemonstrated value. FBI Director Robert

Mueller stated, for instance, “that he ‘would not

dismiss the potency of a program based on the

percentage of hits’” (Ibid.).

If the PSP was less effective than its proponents

hoped, other NSA programs seeking to predict

terror attacks faced more fundamental chal-

lenges. In a world where private firms were

collecting massive amounts of financial, tele-

phonic, and electronic transactional data, NSA

leadership and their funders in Congress sought

to use computers and algorithms to seek pat-

terns of terrorist behavior within those data.

The agency went to work compiling and index-

ing massive databases of existing intelligence

case files, financial institutions’ records of their

clients’ transactions, and telecommunications

companies’ records of clients’ phone calls,

emails, website visits, and text messages.

They installed splitters at fiber optic connection

points, effectively siphoning a mirror image

copy of all telephonic and electronic communi-

cations for further analysis and sorting

(Bamford 2008).


20


But, NSA efforts to pick out potential terrorists

using sophisticated data-mining techniques

were severely limited by the fact that there are

too few terrorist plots and associated behaviors

to identify a general pattern

of (electronic, transactional) ‘terrorist’ behavior.

The ‘machine learning’ that can make data-

mining effective in domains like credit scoring

requires vast stores of data on individual finan-

cial activity.

Machine learning works by comparing data on

a subject’s current financial history to the com-

plete history of many people who were

similarly situated at some point in their past.

Because the computer knows with certainty

how several people in socioeconomic situation

‘x’ performed financially at time t1, t2, t3, …

t99, it can later predict how a person in situa-

tion ‘x’ at time t32 will behave. However, for

the machine to learn what set of socioeconomic

variables actually predicts future behavior –

i.e. what ‘similarly situated’ means – it must

have a complete and thorough ‘training set’

of data on a number of people covering a wide

array of variables at least somewhat relevant to

their financial performance (National Research

Council 2008).

Because banks have kept so much data on their

customers’ transactional histories and those

data are easily linked to other data – e.g. home

ownership, occupation, number of children,

age, education, ethnicity, gender, etc. - the

‘training sets’ for financial competence are com-

prehensive in terms of variables, complete over

the financial lives of subjects, and relatively

accurate. As banks continue to accrue more

data, the software learns more and more about

how its predictions were right or wrong and

becomes even better at predicting financial out-

comes in the future.

When applied to the case of terrorism, the NSA

had hoped data-mining software relying on

machine learning would be able to predict who

will engage in terrorist activity weeks, months,

or even years before their attacks are scheduled.

But there simply are not enough data on terror-

ist activities to use the machine learning process

(Ibid.). Comprehensive data sets on terrorists’

activities prior to attacks only number in the

dozens. Programmers would need several hun-

dred cases, at minimum, for the machine

learning process to be helpful.

But even these data are not likely to be helpful.

More data about terrorist behaviors could be

added as plots unfold but there is little reason

to believe that terrorists openly engage in meas-

urable behaviors that are both substantially

related to terrorist activity (that could be used

to establish a terrorist ‘signal’) and are clearly

distinguishable from the common behaviors

(i.e. irrelevant informational ‘noise’) of billions

of non-terrorists. Before the 9/11 attacks, the

activities of the hijackers — renting apartments,

holding jobs, carrying passports, and buying car

insurance in their own names — all appeared

normal. Their phone numbers were in the local


21


phone book. Some of them even bought their

boxcutters at a Target store just down the street

from NSA headquarters. Even after 9/11, none

of these activities would seem suspicious. And

the most suspicious behavior — inquiring about

how to fly but not land passenger jet planes —

could only be noticed by human informants or

agents, not computers sifting through petabytes

of transactional data.

3 . FA L S E L E A D S

While unnecessary informational noise poses

a challenge to the detection of genuine terrorist

signals, false signals actually distract attention

and resources away from helpful CT efforts.

To prevent the pursuit of false leads, states –

for centuries – have regulated the ability

of law enforcement to conduct searches and

surveillance.13 If evidentiary thresholds for

attaining investigative warrants are set too low

(or eliminated entirely), agents may, intention-

ally or not, pursue more weak leads than they

would with stricter oversight. Expansive inves-

tigative powers threaten security and undermine

state legitimacy if they distract the attention

and resources of security agencies, encourage

the harassment of innocents, or allow the

guilty to go free.

Our review of news accounts and government

reports has uncovered evidence that expanded

search and surveillance tools after 9/11

increased informational noise and the pursuit

of false signals. PATRIOT ACT provisions

allowed the FBI to collect more and more

information about people without demonstrat-

ing sufficient (or in many cases, any) cause for

suspicion. Between the years 2000 and 2008,

the issuance of National Security Letters

(NSLs) — demands sent to companies to

secretly gather financial and communications

transactional information about individuals

without their knowledge — increased over five-

fold to 50,000 per year (Dept. of Justice 2007).14

The number of FISA warrants sought and

approved also doubled over the period to 2,400

(Electronic Privacy Info. Center 2008). And, the

number of Suspicious Activity Reports (SARs),

which are secret reports to the Treasury

Department made by U.S. banks about their

customers, grew six-fold to 1,250,000 by 2007

(Dep. of Treasury 2008). (Meanwhile, the

number of FBI agents working on terrorism

only doubled.)

With so much information being collected, one

might think that the number of terrorism cases

also increased dramatically over the period.

However, the number of cases prosecuted by

the DOJ dropped significantly from its post-

9/11 high of 355 in 2002, to 34 in 2008 (the

latest year for which data were available at the

time of printing). Those numbers may reflect

prosecutorial overzealousness in 2002 and/or

a steady decline in the number of individuals

engaged in terrorist activity over the period.

In any case, the enhanced information gather-

ing powers of the FBI did not seem to result

in higher quality case files for prosecution.

While in 2001, DOJ prosecutors declined only

33 percent of the terrorism cases the FBI

referred for prosecution, in 2002 that declina-


22


tion percentage rose to 54%. By 2006, the DOJ

rejected 87% of the terrorism cases the FBI

referred for prosecution (Transactional Records

Access Clearinghouse 2006).

These data plainly show that at the same time

investigators were collecting more information

they were also referring fewer cases to prosecu-

tors overall, and a much higher percentage of

those did not meet prosecutors’ standards.

While the Justice Department defends the use

of its expanded search and surveillance powers,

its Inspector General’s Office has also reported

on their limited effectiveness: “Many field

agents and Headquarters officials we inter-

viewed said it is difficult to isolate the

effectiveness of national security letters in the

context of a particular case” (Fine 2007-A, 45).

Indeed, responding to an earlier journalistic

investigation by Washington Post reporter Barton

Gellman, then Assistant FBI-Director, Michael

Mason could not recall a case in which NSLs

had been essential or dispositive. “I’d love to

have a made-for-Hollywood story, but I don’t

have one,” Mason said. “I am not even sure

such an example exists” (Gellman 2005).

The same can be said for controversial Section

215 of the PATRIOT Act, which expanded the

scope of FISA search warrants to “any given

thing” associated with a FISA investigation.

When Section 215 was reviewed by the DOJ

Inspector General, his report concluded, “We

found no instance where the information

obtained from a Section 215 order resulted in a

major case development such as the disruption

of a terrorist plot” (Fine 2007-B, 79). “Most

of the agents we interviewed said the records

obtained… did not contribute to the develop-

ment of additional investigative information”

but were useful for ruling out suspicions about

a person (Fine 2007-B, 67).

Some policymakers thought that lowering

evidentiary thresholds justifying search and

surveillance would free terrorism investigators

from wasting precious time seeking what they

judged to be excessive permission from judicial

authorities, arguing that in situations where

time is of the essence, judicial oversight could

put security at risk. But long before 9/11,

agents could request and receive warrants very

rapidly — within hours, not days — if they had

evidence suggesting that someone might be

involved in criminal activity. In emergency

situations, investigators could even set a wiretap

and then apply for its warrant later. In non-

emergency situations judicial oversight often

improves intelligence gathering by requiring

careful investigative work critical to winning

warrants and prosecuting cases. Contrary to the

conventional understanding that investigatory

oversight slows investigators, appropriate

judicial oversight reduces the distracting noise

of false leads, saves investigators the time

needed to rule out the guilt of thousands of

potential ‘suspects,’ and improves the quality

of intelligence.

The argument could be made that it is not pos-

sible to know the effects of expanded search

and surveillance tools because the valuable


23


intelligence and investigatory contributions

resulting from reduced standards are classified.

But if this argument were true, then only a

remarkable and highly improbable coincidence

(or some far-fetched conspiracy) could explain

how all available evidence about disrupted

plots – today known through news accounts

and court cases – demonstrates no enhanced

intelligence benefit from the expanded search

and surveillance powers.

Out of concern for civil liberties, Congress

required the Inspector General of the

Department of Justice to investigate potential

civil liberties abuses by investigators and placed

some restrictions on the use of NSLs when it

reauthorized the PATRIOT ACT in 2006.

The reports coming out of these inspections

confirmed that the number of actual prose-

cutions was dwarfed by the number of NSLs

issued and people affected — and that the

powers had been misused by the FBI. However,

given the evidence of their inefficacy and

counter-productivity lawmakers might also

attend to the potential security drawbacks of

NSLs and other expanded search and surveil-

lance powers even when they are not abused.

Ethnic/Religious andBehavioral ProfilingFollowing 9/11, authorities employed multiple

profiling tactics – like the FBI’s “Interview

Project,” Immigration and Customs

Enforcement’s “Special Registration”

program, and the Transportation Security

Administration’s Computer Assisted Passenger

Prescreening System and ‘behavioral’ profiling

tactics – in their attempts to home in on those

individuals most likely to carry out terrorist

attacks. The FBI’s “Interview Project” screened

tens of thousands of American citizens

identified as Muslim and/or Arab. The inter-

views could not be mandatory without violating

14th amendment protections against differential

treatment based on ethnicity or religion, but

many Muslim and Arab Americans complied

due to feelings of patriotism, obligation, and/or

intimidation.

The Immigration and Naturalization Services

(now Immigration and Customs Enforcement

or ICE) also required male immigrants from

Muslim majority countries to perform a

‘Special Registration,’ a process in which, over

several months in 2002 and 2003, immigration

personnel photographed, fingerprinted, and

interviewed more than 80,000 registrants.

Thousands of these men were deported for

minor immigration violations, usually visa over-

stays. The rest were placed on a sort of

probation requiring them to report to immigra-

tion authorities at least once per year and every

time they entered or exited the country,

changed jobs, changed addresses, or enrolled in

universities, etc. They were also required to

enter and exit the country only through desig-

nated airports or sea ports.15

The Department of Homeland Security’s

Transportation Security Administration (TSA)

also took action seeking to filter potential ter-

rorists from the rest of the population. The

agency had to be mindful of Department of


24


Justice protocols (based on the 14th amendment)

preventing involuntary ethnic/religious profil-

ing of American citizens, but it did employ a

Computer Assisted Passenger Prescreening

System (CAPPS) especially sensitive to those

who were traveling or had traveled to Arab-

or Muslim-majority countries. The effect of

CAPPS was to apply more stringent scrutiny to

travelers with Arab and/or Muslim heritage

while also comparing travelers’ names, financial

transactions, housing information, family con-

nections, travel destinations, contact telephone

numbers, seat assignments, dates of travel,

passport information, method of payment, and

amount of luggage to those of known terrorists

or terrorists scenarios defined by databases and

streaming intelligence reports. CAPPS (and its

second and third generation offspring) then

ranks passengers according to their likelihood

of being a terrorist. The top 5 percent or so

(the exact percentage is classified) are subjected

to higher levels of screening that can include

luggage searches, pat downs, additional screen-

ing, and/or brief interviews.

The TSA also employs behavioral profiling,

whereby agents seek to discover passenger nerv-

ousness, irritability, or other suspicious signs

that might indicate their intentions to commit

terrorism. The methods are reputed to be highly

effective in Israel, where the national airline, El

Al, despite receiving almost daily terror threats,

has not experienced a major attack in over three

decades. TSA’s use of behavioral profiling is

much less intensive than El Al’s. The latter

approach submits every passenger to a battery

of open-ended questions and psychological

evaluations. By contrast, TSA’s Screening

Passengers by Observation Techniques (SPOT)

program only closely questions the rare passen-

gers that agents deem suspicious. In practice,

probably owing to the human tendency to inter-

pret the behaviors of poorly understood

out-group members as 'exotic' (Tajfel 1982),

TSA agents, according to multiple anecdotal

accounts, have been prone to apply greater

scrutiny to Muslim, Arab, Sikh, and South-

Asian air passengers.

Given that the 19 airplane-hijacking suicide

bombers of 9/11 were all Muslim and most

were Arab (15 from Saudi Arabia, two from

the United Arab Emirates, one from Egypt,

and one from Lebanon), it was not entirely irra-

tional for security officials – fearing that other

terrorist cells might already be hiding in the

country – to focus their attention on the one in

100 Americans of Muslim of Arab descent

rather than on the entire population. In fact, the

case for profiling has always seemed common-

sensical: if police know the basic characteristics

of their suspects (height, weight, eye-color,

etc.), they should focus more attention on peo-

ple sharing those characteristics. By reducing

the number of people who must be questioned

or searched, investigators can boost the strength

of the ‘signal’ of terrorism and reduce the

‘noise’ from innocent populations.

1 . E T H N I C / R E L I G I O U S P R O F I L I N G

Despite the apparently sensible basis for

profiling, there is no evidence that U.S.


25


profiling policies have worked to catch terror-

ists. According to a 2003 Government

Accountability Office (GAO) Report on the

FBI’s ‘Interview Program,’ the FBI and DOJ

provided no specific evidence that the program

had generated any leads and over half of the

FBI agents the GAO spoke with “expressed

concerns about… the value of the responses

obtained in the interview project” (Government

Accountability Office 2003, pgs. 5-6). The

massive ‘Special Registration’ program of ICE

and DHS never captured any terrorists either.

After two years of cataloguing and interviewing

tens of thousands of immigrants and visa-hold-

ers the program was scaled-back (reducing

visitors’ reporting requirements) and re-named

“US-VISIT.” So far, there is no evidence of any

terrorist being caught in the act by the CAPPS

system either (or its second generation ‘CAPPS

II,’ or its third generation ‘Secure Flight’). And

while TSA’s behavioral profilers have suspected

and interviewed hundreds of thousands

of travelers, none of them were engaged in

terrorist activities.

Religious and ethnic profiling fails similarly to

data mining. There are simply too few terrorists

from which to generalize a useful profile.

While extremely few people are involved with

terrorism, millions of American citizens, resi-

dents, and visitors are law-abiding Muslims and

Arabs. A profiling policy that boosts the signal

of Muslims and Arabs does not significantly

boost the signal of terrorists, but instead

amplifies a slightly narrowed bandwidth of

informational noise representing Muslim and

Arab populations.

The case of Brandon Mayfield clearly illustrates

the poor outcomes generated by profiling based

on widespread characteristics like religion.

Mayfield, a Portland, Oregon attorney, was

investigated and jailed by the FBI for several

weeks on the grounds that: a) his fingerprints

were a partial-but-weak match with those left

by a Madrid Bombing suspect; and b) he had

converted to Islam several years prior. Despite

contravening objections and evidence provided

by Spanish intelligence, the FBI rushed

to judgment, obtained a series of FISA war-

rants and a “sneak and peek” warrant, entered

Mayfield’s home surreptitiously, took dozens

of photographs, scanned his hard-drives,

subpoenaed his phone and Internet records,

and eventually detained him for two weeks

while telling reporters that he was responsible

for the Madrid bombings of 2004. By the

time agents discovered Mayfield’s innocence,

thousands of investigator hours had been spent.

Mayfield sued and the government paid two

million dollars restitution to him in an out-of-

court settlement (Epps 2007).

Profiling not only produces ‘false positives,’ like

Mayfield; it may also generate ‘false negatives.’

The few terrorists able to pass through airport

screenings since 9/11 – failed “shoe bomber”

Richard Reid and would-be Christmas Day

bomber Umar Farouk Abdulmutallab –

illustrate how the policy may simply inspire


26


terrorist groups to shift the racial profiles of

their operatives. Shoe bomber Reid was

half-Caucasian, half-Jamaican, and a British

national. Farouk Abdulmutallab was African,

from Nigeria. Others, too, have shown the abil-

ity of terrorists to recruit outside phenotypical

stereotypes to avoid ethnic profiling, including:

Hispanic-American Jose Padilla, half-Pakistani,

half-American David Headley (who adopted

his mother’s Judeo-Christian name), white

Illinoisan Michael Finton, the home-schooled

Californian Adam Gadahn (AKA Abu Yahya),

Alabama-Native and former Junior Class High

School President Omar Hammami (AKA Abu

Mansoor Al-Amriki), Hispanic-American and

one-time Boy Scout Bryant Neal Vinas, and

blonde-haired, green-eyed suburbanite Colleen

LaRose (AKA Jihad Jane).

Some researchers predicted this shift in recruit-

ing strategy as early as 2002. Then, analysts

used statistical modeling to demonstrate how

any screening system applying heightened

scrutiny to some profiles and not others could

easily be overcome by terrorist organizations

(Chakrabati and Strauss 2002). By simply

sending their members on “dry run” flights

without any explosive devices, extremist groups

can determine who among their membership

can pass through the system unhassled.

Terrorists can reasonably infer that those who

consistently fail to trigger the system do not fit

the ‘suspect profile’ and are consequently ideal

candidates to execute attacks. By testing the

profile, Chakrabati and Strauss’ model showed,

terrorists can reverse engineer its components

in only two or three iterations and easily beat it

with non-Arab recruits. CAPPS profiles, there-

fore, can only outperform random-screening

procedures if terrorists are unwilling to test the

profiles more than a few times (Ibid.). To the

greatest extent possible, many security experts

conclude, searches of people and luggage

should occur without a discernible pattern that

can be reverse engineered.

Given the major weakness of a two-tiered

screening system relying on profiling, security

experts have also recommended applying the

highest available levels of screening to all pas-

sengers (Chakrabati and Strauss 2002; Schneier

2009). It was the universal screening for metals

and explosives that forced Richard Reid to

attempt to use an unreliable shoe bomb in late

2001. Eight years later, the requirements that

passengers submit their shoes to x-ray screening

and carry no more than 3 oz. of any liquid onto

a plane posed hurdles leading to the inadequate

construction of Abdulmutallab’s unreliable

undergarment bomb. These defenses, far more

than the extra-screening of behavioral profiling

or pat-down searches, have deterred or compli-

cated terrorist attacks. Enhancing screening for

all can provide heightened security without cre-

ating a loophole for terrorists who do not fit the

terrorist profile. If universal screening technolo-

gies are prohibitively expensive (e.g. if full body

scanners cannot be deployed in every airport),

evidence suggests that randomly selecting

passengers for heightened screening is more


27


effective at catching terrorists and deterring

them from attempting attacks than two-tiered

profiling (Chakrabati and Strauss 2002;

Schneier 2009).

2 . B E H AV I O R A L P R O F I L I N G

According to government reviews, news

reports, and psychological studies, behavioral

profiling does not appear to be any more effec-

tive than ethnic and religious profiling. The

TSA’s (Screening of Passengers by

Observational Techniques) SPOT program

attempts to recognize ‘malintent’ in travelers,

but it is based on the assumption that terrorists

will exhibit outwardly suspicious behavior that

can lead interrogators to further probe for signs

of duplicity. However, the peer-reviewed science

on ‘malintent’ detection – recently reviewed in

Nature – suggests rather strongly that it cannot

work. And like other profiling, the program has

resulted in no terrorist plot disruptions. Fewer

than 1 percent of the 272,000 individuals inter-

viewed by SPOT agents were arrested, all of

them for criminal activities or outstanding war-

rants. With a 99% false positive rate for any

criminal activity and 100% false positive rate

for terrorism, it seems there is little to recom-

mend the program.

Some claim that behavioral profiling has very

effectively secured Ben Gurion airport in Israel.

But officials there use so many layers of (time-

consuming) security that their overall success

cannot be attributed to a single factor. Terrorists

might worry about face-to-face interviews with

security officials who ask very specific but

open-ended questions, but they also must worry

about vehicle checkpoints on the way into the

airport, multiple layers of x-ray machines and

metal detectors, and sophisticated explosives-

detectors for checked luggage. The blanket

surveillance and questioning of air passengers –

and the very time-consuming focus on non-

Jewish passengers – might be one element in a

security system causing terrorists to seek easier

targets than the airport, but that does not mean

that the U.S.-style behavioral profiling of SPOT

can be effective. On the contrary, a side-by-side

comparison of the security systems seems

only to highlight the chasm between the two.

And as Israeli security consultants who once

hoped to scale the system up and bring it

to the U.S. point out, “Adopting the full Israeli

system won’t work, because of costs, time and

legal differences” (Guttman 2010). “People

simply won’t agree to spend all that time and

money” (Ibid.)

3 . A I R P O RT S E C U R I T Y E V O L U T I O N

The DHS’s most recent (Spring and Summer

2010) shifts in airport screening policy seem to

incorporate some awareness of the limitations

of profiling. According to news reports, the

latest screening system will include a higher

percentage of random-screening and some lay-

ers of security will remain ‘unseen,’ preventing

reverse engineering (Zeleny 2010). Both of

these modifications were recommended by

Chakrabati and Strauss, Bruce Schneier, and

other security analysts. In addition, TSA


28


reports it will be installing over 450 full-body

scanners across the country by the end of 2010,

950 by the end of 2011, and 1800 by the end of

2014, enough for over half the security lines in

the largest, highest priority airports. Eventually,

the machines will fully replace magnometers,

since the latter fail to detect non-metallic

weapons like ceramic knives or chemical explo-

sives.16 These changes appear to be steps in the

right direction, but DHS still apparently has

a good deal of faith in the value of profiling,

as they are investing incredible sums – $1.3

billion through 2020 (enough to buy 8,000 body

scanners) – in the development of an accurate

terrorist profile for their CAPPS filters

(Government Accountability Office 2010).

Those efforts, as discussed above in the section

on data mining, are likely to meet with contin-

ual frustration because data-driven solutions

to the challenge of finding terrorists rely on the

kinds of data that simply do not exist.

‘Enhanced InterrogationTechniques’ 17

After 9/11, popular narratives of terrorists por-

trayed them as extremely hardened fighters,

maybe even ‘unbreakable.’ Would they respond

favorably to the interrogation methods

developed by police to encourage criminals

to confess their crimes or turn on their

co-conspirators? Many who had the power to

control or influence policy believed they would

not. And given that hundreds or thousands

of lives might be at stake, they thought that

hardened terrorists might need to be softened

up with harsher treatment.

Thus, the Bush Administration and the CIA

General Counsel met with and orally requested

opinions from the Department of Justice on

how to legally widen the array of tools available

to interrogators throughout late 2001 and

2002.18 On August 1, 2002, Assistant Attorney

General of the United States, Jay Bybee, sent

memos to legal counsel for the White House

and CIA explaining the conditions under which

CIA interrogators could use techniques includ-

ing “(1) attention grasp, (2) walling, (3) facial

hold, (4) facial slap (insult slap), (5) cramped

confinement, (6) wall standing, (7) stress posi-

tions, (8) sleep deprivation, (9) insects placed in

a confinement box, and (10) the waterboard.”19

A supplementary memo, by Deputy Assistant

Attorney General John Yoo offered a legal

opinion explaining how and why the techniques

might not constitute ‘torture’ in violation of the

U.N. Convention Against Torture.

In both documents, Bybee and Yoo assert that

the methods probably do not cause long-term

physical or psychological damage if used in rea-

sonable doses. They also cite the fact that the

methods (except for ‘insects placed in a confine-

ment box’) are used on American military men

and women as a part of their Survival, Evasion,

Resistance and Escape (SERE) training. That

program was first developed out of a Korean

War training program designed to expose (and

hopefully inoculate) soldiers to the brutality

they might encounter if captured by the enemy.


29


It is unclear who broached the use of SERE

tactics on terrors suspects first – CIA Director

George Tenet and his number two John

McLaughlin, or top executives in the White

House. But the purpose of the tactics was clear:

to bring more tools to bear in the struggle to get

information out of terrorists. The tools were

thought to work in one of two ways. The most

physically coercive – like the slapping, shaking,

walling, cramped confinement, and waterboard-

ing – were designed to be so unpleasant as

to force cooperation. Stress positions, sleep

deprivation, and sensory disorientation were

intended to break detainees’ will from within

by causing them to harm themselves and

eventually slink into a state of psychological

despondency. Both classes of coercion were

intended to make it clear to detainees that they

were not in control of their bodies and they

could only experience relative calm and com-

fort by cooperating with their interrogators.

The long-time SERE trainers charged with

implementing the new interrogation regime,

James Mitchell and Bruce Jessen, believed that

the methods could induce a state of “learned

helplessness,” first described by experimental

psychologist Martin Seligman (Seligman 1972).

Seligman found that punishing dogs with

electric shock at random intervals, irrespective

of their behavior, created despondent psychosis

and pathological dependency. It is still not

entirely clear why Mitchell and Jessen believed

detainees in such mental states would produce

valuable information, but Seligman has

publicly distanced himself from that notion.

1 . E N H A N C E D I N T E R R O G AT I O N

A N D I N T E L L I G E N C E

In our review of declassified CIA documents,

intelligence reports, investigative journalistic

accounts, and even some interrogation

transcripts (see ‘Extended Bibliography’ for

a complete list) we uncovered no evidence

demonstrating that enhanced interrogation

techniques aided the thwarting of a single ter-

rorist plot. However, as reports of prisoner

abuse at Abu Ghraib, Guantanamo Bay, and

Bagram Air Force Base surfaced, Bush White

House and CIA officials, led by Vice President

Dick Cheney, were quick to assert that en-

hanced interrogation had saved lives. The

former vice president pointed to secret informa-

tion allegedly demonstrating the techniques had

worked. In 2009, he even publicly pressured the

CIA to declassify memos showing “what we

learned through the interrogation process and

what the consequences were for the country.”20

When the documents emerged, Cheney

claimed, “The documents released Monday

clearly demonstrate that the individuals sub-

jected to enhanced interrogation techniques

provided the bulk of intelligence we gained

about al Qaeda.” The statement was technically

true. The same people subjected to enhanced

interrogation techniques – Abu Zubaydah and

Khalid Sheikh Muhammed (KSM), in particu-

lar – were the same people who divulged a

great deal of information to authorities. The


30


only problem with Cheney’s story is that the

available evidence suggests the detainees were

most cooperative at the points in their interro-

gation when enhanced methods like

waterboarding were not being used.

Abu Zubaydah — Mitchell and Jessen’s first

‘learned helplessness’ case-study — is instruc-

tive. Operating in a secret CIA jail in Thailand,

the SERE trainers were allowed to direct the

second phase of the interrogation of Abu

Zubaydah – then thought by some to be third in

Al Qaeda’s chain of command. The first phase

had been carried out by FBI interrogators who

nursed Zubaydah back to health after he sus-

tained gunshot wounds during his capture and

used traditional rapport-building approaches

during his recovery (Isikoff 2009, April 25).

They gained his trust and drew vital informa-

tion about Al Qaeda’s personnel and how the

9/11 attacks had been planned and carried out

(Soufan 2009). He identified many Al Qaeda

operatives including KSM, the mastermind

behind 9/11 (CIA 2005). The former SERE-

trainers contracted by the CIA then took over,

claiming jurisdiction over the interrogations,

slamming Zubaydah against a flexible plywood

wall, slapping him, placing him in confinement

boxes, and waterboarding him for several

sleep-deprived weeks (Isikoff 2009). Finally,

unable to secure any further information, they

too determined that he must have already

offered his most valuable information to FBI

interrogators.

Though fewer details from KSM’s interrogation

have been made available to the public, there is

no credible evidence suggesting that any of the

information he provided was in response to

coercive interrogation practices. What is known

is that the CIA used a mix of coercive and rap-

port-based approaches and that he divulged his

most useful information to an interrogator,

Deuce Martinez, who eschewed the rougher

tactics. As New York Times correspondent, Scott

Shane, reports, “Mr. Martinez came in after the

rough stuff, the ultimate good cop with the clas-

sic skills: an unimposing presence, inexhaustible

patience, and a willingness to listen to the

gripes and musings of a pitiless killer in ram-

bling, imperfect English. He achieved a rapport

with Mr. Mohammed [KSM] that astonished

his fellow C.I.A. officers” (Shane 2008,

June 22). KSM even reportedly wrote poems

to Martinez’s wife as a show of respect

to Martinez. Over time the CIA transitioned

to interrogation that used much less physical

coercion and more rapport-based approaches.

Reports from KSM’s captors suggest that he

offered his most useful information when

interrogators appealed to his intellectual vanity.

Apparently intelligence agents flattered him

into giving multiple lectures about the structure

and operation of Al Qaeda – turning him into

a virtual CT consultant for the U.S.

A subsequent 2004 CIA Inspector General’s

report into enhanced interrogation techniques

used on Zubaydah and KSM and others con-

cluded that the coercive techniques had not

uncovered evidence of imminent plots. FBI


31


Director Robert Mueller, in a December 2008

interview with Vanity Fair magazine, offered the

same conclusion on the techniques’ efficacy for

gaining crucial information (Rose 2008). The

one CIA operative who ever publicly stated that

the CIA’s “enhanced interrogation regime”

saved lives, retracted his story two years later.

John Kiriakou had said in an ABC interview

that one application of waterboarding to Abu

Zubaydah had produced actionable life-saving

intelligence. It later came out that Zubaydah

had been waterboarded 83 times, that Kiriakou

witnessed none of the interrogations, and that

he was repeating non-credible information he

had heard from others. He now concludes, “In

retrospect, it was a valuable lesson in how the

CIA uses the fine arts of deception even among

its own” (Stein 2010).

Claims that enhanced interrogation delivered

critical intelligence to the foiling of terrorist

plots have also been challenged by foreign intel-

ligence agencies. After a staff associate to

former Vice President Dick Cheney claimed in

a book that a 2006 Heathrow hijacking attempt

was disrupted by intelligence gathered from

‘enhanced interrogation,’ Peter Clarke, then-

head of Scotland Yard’s anti-terrorism division,

called his account “completely and utterly

wrong” because the “deduction that what was

being planned was an attack against airliners

was entirely based upon intelligence gathered

in the U.K.” (Mayer 2010).

2 . D E F I A N C E , L E A R N E D H E L P L E S S -

N E S S , A N D P O O R I N T E L L I G E N C E

Basic human psychology reveals why coercive

interrogation has not proven effective. Humans

may tend to seek pleasure and avoid pain, but

they also regularly sacrifice their pleasure —

even their lives — for what they view as higher

goals. Parents sacrifice for children, children for

parents, soldiers for nations, lovers for love,

artists for creation, and many for money. Even

so, reductive stimulus-response understandings

of human nature persist, leading to simplistic

interrogation strategies that overgeneralize

based on a partial understanding of human

behavior. Such simple and mechanical theories

of human motivation ignore much of the

knowledge accrued by the fields of psychology

and social psychology over the last several

decades, particularly the key distinction

between ‘intrinsic’ and ‘extrinsic’ motivation.

While external factors like rewards and

punishment can certainly have some effect on

peoples’ behaviors, internal, intrinsic motiva-

tions are at least as important in determining

their actions.

Irhabis are individuals invested in a powerful

narrative that casts them as warrior heroes in

a trans-worldly battle against injustice. Whether

as well-educated moderns or working-class

flunkies, they, like virtually all humans, are

driven to be the primary causal agents in their

lives (see Deci and Ryan 2004 for a thorough

review of ‘self-determination’ research). They

imagine themselves playing a decisive role in


32


history — providing a critical push to ridding

the Islamic world of western influence —

and effectively paving the way for an era of

peace and justice.

Given these powerful psychological motiva-

tions, it may be very difficult for interrogators

of Islamist extremists to devise any amount

of purely external incentive (pleasurable or

painful) capable of overriding a detainee’s

intrinsic motivation to control his own behavior

and protect secrets to which he and his com-

rades have mutually committed themselves.

‘Reactance’ and ‘defiance’ theories both show

that people tend to steel their wills against those

who attempt to constrain their freedom or harm

them (Brehm and Brehm 1981; Sherman 1993).

Abusing and threatening people – as ‘terror

management theory’ predicts – often causes

them to hold more firmly to their ideological

commitments (Solomon et al. 2004).

As for “learned helplessness,” the evidence sug-

gests it is counterproductive for interrogators

(Fein et al 2006). The abuse, according to trau-

matic stress theory, causes many people to

simply dissociate from the traumatic environ-

ment, psychologically withdrawing to the point

that they may lose their connection with reality

(Hobfoll 1991). Psychologists’ and militaries’

investigations into the efficacy of physically

coercive interrogation highlight these concerns.

The CIA’s own previous interrogation manuals,

published in 1963 and 1983, made much of the

fact that some defiant individuals are better able

to withstand pain than most civilians believe,

while other broken individuals may provide

unreliable information. “Use of force is a poor

technique,” the manual warned CIA agents,

“yields unreliable results, may damage subse-

quent collection efforts, and can induce the

source to say what he thinks the interrogator

wants to hear” (CIA 1963).

Physically coercive interrogation techniques

intended to incentivize cooperation often

appear only to escalate and prolong the battle

of wills between captors and detainees. Another

set of techniques was designed with the goal

of undermining the will of the detainee itself.

Throughout the 1950s and ‘60s, the CIA

researched the effects of sleep deprivation,

sensory disorientation (achieved by the constant

presence of absence of sensory stimuli), and

stress positions on detainees (McCoy 2006).

Because these techniques are also incredibly

uncomfortable and clearly adversarial, they still

inspire unhelpful defiance, but they also weaken

the individual psychologically in ways that

some hoped might attenuate that defiance. The

techniques also, though, alter subjects’ mental

states to the point where they become easily

confused and open to suggestion (CIA 1963),

psychotic break, hallucinations, and/or inability

to distinguish between true and false memories

(Mason and Brady 2009; Pilcher and Huffcutt

1996).21 Prolonged sleeplessness and a loose

connection to reality can easily result in false

confessions or false allegations against others

stemming from subjects’ confabulation of


33


reality with fantasy or the introduction of false

memories by interrogators.22

It was just such false information – delivered

under torturous duress by Ibn al-Shaykh al-Libi

– that supported the Bush administration’s erro-

neous conclusion that Iraq had been involved in

Al Qaeda’s 9/11 attacks. That connection was

strongly questioned by contemporary CIA and

Defense Intelligence Agency (DIA) reports and

later thoroughly debunked by a U.S. Senate

Select Committee and in various media (United

States Senate Select Committee on Intelligence

2006, pgs. 106-108; Kirk 2008).

Chasing the false leads of information given

under duress has apparently become a major

distraction at the FBI, adding to the signal

detection challenges already exacerbated by

other controversial CT tactics. A “seasoned

counterterrorist agent” reported to Vanity Fair’s

David Rose recently that “At least 30 percent

of the FBI’s time, maybe 50 percent, in coun-

terterrorism has been spent chasing leads

[produced by detainees under duress] that were

bullsh*t.” They try “to filter them. But that’s

ineffective, because there’s always that ‘What

if ?’ syndrome” (Rose 2008).

The self-defeating side-effects of enhanced

interrogation have been warned against by

history’s military leaders for hundreds of years.

“[P]utting men to the torture, is useless,”

Napoleon said. “The wretches say whatever

comes into their heads and whatever they think

one wants to believe.” Recently, China banned

the practice after reports revealed that it had led

to false confessions, the executions of

innocents and, conversely, freedom for the

guilty (Jacobs 2010).

3 . THE TICKING TIME BOMB SCENARIO

What about the “ticking time-bomb” scenario

where 1) a nuclear bomb is armed in a major

city; 2) it is scheduled to detonate within 24

hours; 3) security personnel have apprehended

a suspect who they believe knows about the

location of the bomb; and 4) they know that he

knows this potentially life-saving information?

The ticking time bomb thought experiment is

based on no confirmed incident in history

(Scheppelle 2005) but rather an extreme hypo-

thetical scenario designed by torture apologists

(and promoted by the popular television show

‘24’) to elicit the acknowledgement that in

some situations enhanced interrogation could

be justified. But such a conclusion rests on

an assumption — that the suspect would con-

fess rather than become defiant in the face of

torture — which psychological and empirical

evidence suggests is incorrect. KSM was water-

boarded 183 times over a one month period

without giving helpful information to interroga-

tors (Shane 2009). The ticking time bomb

would have exploded 29 days earlier — clearly,

a faster solution would be needed.

Moreover, the limited temporal window of the

ticking time-bomb scenario would only seem to

work in terrorists’ favor. In a scenario in which

a terrorist suspect’s secret knowledge is only rel-


34


evant for 24 hours (or, in the case of improvised

explosive devices, some matter of days), the

intransigent detainee only needs to remain defi-

ant for a short period to realize his mission.

4 . F R O M S U S P E C T S T O I N F O R M A N T S

Putting detainees through a psychological

ordeal might, in theory, “soften up” terrorists so

that they can more easily be “broken.” But

there is no evidence that “breaking” detainees

produces helpful intelligence anyway. The best

intelligence appears to come from suspects who

have been “turned” into informants through

skillful interrogations relying on a rapport

between interrogators and detainees (B’Tselem

2000, 51). Rapport-based approaches seek to

uncover and leverage detainee’s internal

motivations to glory, recognition, power, and

survival, without emphasizing and exacerbating

an adversarial relationship. Skilled interrogators

empathize with their subject and appeal to

his vanity, his self-interest, and his love of his

family. They sometimes use deception to trick

him into believing that talking will help him

or use trusted religious clerics or family mem-

bers to seek the subject’s cooperation (among

other approaches). Often, as discussed later,

it is the (even illusory) trust developed through

rapport approaches that serves as the founda-

tion of plea settlements delivering troves of

useful intelligence.

These more sophisticated interrogation tech-

niques rolled up Zarqawi’s terrorist network in

Iraq. One man providing life-saving informa-

tion was promised help with a divorce from a

shameful marriage and a chance for recon-

ciliation with his first wife (Alexander 2008,

Chapters 10-11). Another was promised that his

son would be treated to a fair trial instead of

being tried by his enemies (Ibid., Chapter 21).

One most difficult subject of the interrogations

in Iraq was a man who had offered no informa-

tion to an inexperienced interrogator using an

adversarial approach. But when he was fooled

into accepting a bogus deal that would have

made him a powerful man in post-occupation

Iraq, he revealed information leading directly to

Zarqawi (Ibid., Chapters 25-30). This may have

been an anomalous case, however, since expert

interrogators often complain that coercive inter-

rogation tactics “poison the well,” destroying

the prospect of turning suspects into informers

(Alexander 2008). This is what happened in

Zubaydah’s case, according to FBI interrogator

Ali Soufan, who said, “Abu Zubaydah was

making progress before torture techniques [were

used]” (Soufan, 2009).

Rapport-based approaches, while they require

interrogators with keen social skills, have

proven themselves highly effective, generating

large amounts of valuable information about

terrorist networks. Despite the common misper-

ception that terrorists are too ‘hardened’ to

respond to anything but violence, many still

have connections to family and friends that they

care about, ambitions they wish to fulfill, and

egos that can lead them to speak more openly

than they intend when they are in the hands of

a skilled interrogator.


35


Detention and Prosecution of Terrorism SuspectsTwo months after 9/11, President George W.

Bush issued an executive order asserting his

power to detain certain terrorism suspects as

‘unlawful combatants’ who, as neither criminals

nor prisoners of war, were not subject to the

detention and prosecution standards defined for

either. Instead, these “combatants” would be

tried in the first U.S. Military Tribunals since

World War II. They could be detained preven-

tatively and indefinitely without rights to full

due process. These were some of the most con-

troversial CT measures of the post-9/11 period.

First instituted by President Bush’s Executive

Order of 2002 and then ratified by Congress in

the 2005 Military Commissions Act, military

tribunals also permitted the use of hearsay evi-

dence and testimony acquired under enhanced

interrogation — evidence civilian courts sup-

press (though these evidentiary standards for

military commissions were revised to align

more closely with Article III courts in 2009).

Today, the Obama administration is deciding

whether and how to prosecute the remaining

175 detainees at Guantanamo Bay military

prison, a focal point for much of the detention

controversy. Pressure from several Senators and

some 9/11 victims’ families motivated Attorney

General Eric Holder to back down from his

plans to try alleged 9/11 conspirators in

Manhattan. Opposition was based partly on

public safety concerns and cost and partly on

the assumption that a military tribunal

was more likely to deliver a conviction than

a civilian criminal trial. And today the

Administration is considering supporting legis-

lation that would remove ‘Miranda’ protocols

requiring law enforcement to inform terrorism

suspects of their right to an attorney. The unex-

amined assumption behind such a proposal is

that not having an attorney will better motivate

suspects to confess and become an informant.

While there has been considerable debate over

the legality of preventative detention (which,

for this paper’s purposes, we define broadly

as the non-battlefield detention of a person

despite a lack of evidence sufficient to charge

and hold him/her with a terrorism-related

crime) and trying terrorism suspects in military

rather than civilian courts, there has been less

discussion of these tactics’ efficacy for prevent-

ing, reducing, or ending terrorism. Their

efficacy for combating terrorism cannot be

measured by simply counting increased deten-

tions or convictions since lowered evidentiary

standards could simply produce greater counts

of detained innocents while the guilty go

unpunished. Instead, lowered evidentiary thresh-

olds for detention and prosecution must be

evaluated in terms of their ability to accurately

identify and prosecute the genuinely guilty.

Altered due process standards and trial venues

must also be evaluated for their ability to deliver

good intelligence to security agencies while

also preventing important state security secrets


36


from becoming known by the state’s enemies.

And finally, we must evaluate whether lower

evidentiary standards for detention and prose-

cution increase or decrease the legitimacy of

the U.S. and its allies relative to the legitimacy

of its enemies. Effective justice processes must

increase the motivation of individuals here or

abroad to assist in CT efforts, and decrease the

motivation of individuals to tacitly or actively

support terrorist activity.

1 . D E L I V E R I N G J U S T I C E

Our review of indictment and prosecutions sta-

tistics for military tribunals and Article III

civilian courts (e.g., federal district courts,

courts of appeals, and the Supreme Court)

shows that the latter venues have hosted orders

of magnitude more terrorism cases and thus

have produced many more terrorism convic-

tions. Between September 11, 2001 and

September 11, 2008, the Department of Justice

has resolved 593 “terrorism-related” cases in

Article III courts, winning convictions in 523

cases (by trial or plea). Of those convictions,

190 were of individuals associated with militant

groups like Al Qaeda.23 Military courts, by con-

trast, convicted just three people involved in

terrorism over the same period.24 Though the

very low sample size for cases by military tri-

bunals challenges efforts to compare the venues,

we can at least conclude that civilian judges and

prosecutors handling terrorism cases are more

experienced than their counterparts in relatively

untested military tribunals.

Some, even without substantial data, argue

that trying suspected terrorists in military rather

than criminal courts increases the chances

of conviction. This might have been the case

during the period from 2001 to 2009 when

Military Commissions admitted statements

made under duress and the testimony of

hearsay witnesses. Then, a suspect might be

convicted because some other detainee seeking

to end a coercive interrogation falsely accused

him of Al Qaeda ties.25 But easing such convic-

tions does not necessarily secure better justice,

just more convictions.

The exceptional justice processes applied to ter-

ror suspects during and after the invasion of

Afghanistan resulted, in part, from the fact that

they were captured in a unique environment

akin to a warzone but hardly resembling the

atmosphere imagined by the drafters of the

Geneva conventions. There was some legal

ambiguity about how the U.S. should proceed.

While The Red Cross and other human rights

organization interpreted the Geneva conven-

tions regarding detainee treatment as applying

to any and all combatants, members of the

Bush administration rejected this notion. They

interpreted the conventions to mean that they

were under no obligation to treat prisoners

detained in Afghanistan as ‘prisoners of war,’

citing the fact that they were not operating

according to rules of war requiring them to

fight openly as uniformed soldiers. Neither,

decision makers in Washington thought, was

the U.S. obliged to treat them as regular


37


American criminal suspects since they were

non-citizen combatants fighting against the U.S.

in a foreign land.

That murky legal environment was anomalous,

though, and could never serve as the model for

detaining and prosecuting terrorism suspects.

Very rarely do governments meet terrorists on

open fields of battle. Instead, they track down

terror suspects, investigate and surveil them,

and finally arrest them on criminal terrorism

charges. The situation in Afghanistan was

unique because a semi-sovereign government

of guerrilla fighters, the Taliban, was providing

safe haven for Al Qaeda’s training camps. Even

today, as the U.S. military fights the same com-

bination of guerrilla warriors and terrorists, it

uses better-formalized detention procedures in

Afghanistan and prosecutes the vast majority of

its cases through the Afghan judicial system. In

2001 and 2002, however, these procedures were

not in place. Thus, in addition to capturing

many Al Qaeda and Taliban fighters, Coalition

forces also detained scores of farmers and by-

standers. Other future Guantanamo detainees

were turned over to the U.S. by the Pakistani

government and bounty hunters, who were,

in some cases, more motivated to dispatch with

tribal rivals than deliver Al Qaeda leaders.

Prosecuting terrorist suspects captured in

murky situations by Coalition soldiers

or Pakistani bounty hunters, not experienced

police investigators, is qualitatively different

from prosecuting terrorism suspects such as

the would-be New York subway bomber, the

would-be Times Square bomber, or the would-

be Christmas day bomber. The guilt of the

latter terror suspects, like the guilt of terror

suspects tracked down by experienced investiga-

tors – is usually easily demonstrable even by the

evidentiary standards of traditional criminal

courts. The guilt of the former can be declared

or asserted, but rarely proven, since little evi-

dence rules out the possibility that they were

simply in the wrong place at the wrong time.

Convictions based on such slim evidence can-

not be counted as effective counterterrorism

since they may only imprison innocents.

Much of some policymakers’ and commenta-

tors’ opposition to holding civilian trials

for 9/11 conspirators has been driven by

concern that criminal trials mete out more

lenient sentences than military tribunals. But

this assumption, too, appears to be incorrect

(Gude 2010). The military officers who com-

prise military tribunals’ juries understand the

“fog of war” better than civilians and may be

more discerning between hard-core terrorists

and their hapless accomplices – and more sym-

pathetic to the latter. Such a notion may cut

against popular intuition, but recent sentences

delivered by military tribunals warrant observa-

tion. Osama bin Laden’s driver, Salim Ahmed

Hamdan — in the first military commission

since World War II — was sentenced by a jury

of military officers to just five and a half years

in prison, not the thirty years requested by pros-

ecutors. (Having already served most of those


38


years, Hamdan was free by the end of 2008.)

A similarly short sentence was delivered for

David Hicks. Both men are walking free today.

While the sample size of military convictions

is not large enough to analyze quantitatively,

the terrorism suspects convicted by military

tribunal received sentences much shorter than

those delivered by Article III Courts for compa-

rable crimes.26

2 . I N T E L L I G E N C E

Concern about trying terror suspects in criminal

courts has also focused on the risk of intelli-

gence leaks (Yoo 2009), but there exists no

evidence demonstrating that Article III courts

are a greater threat to government secrets than

military courts. In 1980, Congress passed and

the president signed into law the Classified

Information Procedures Act (CIPA) to guard

against intelligence-leaking during trials. CIPA

allows prosecutors to call a pre-trial conference

with the court and the defense to hammer out

what information should be considered secret,

and how all parties can effectively talk around

it during public proceedings.27 If the defen-

dants attempt to contravene the pre-trial

classified information guidelines set out by the

court, they can be promptly silenced and held

in contempt of court.

Some have argued that indefinite detention and

denial of the right to counsel (such as through

exemptions to Miranda rights) will result in

terrorist suspects providing more and better

intelligence sooner than they would if suspects

had the right to habeas corpus and to legal

counsel. Suspects, this line of reasoning goes,

will be more likely to confess, share informa-

tion, and otherwise provide good intelligence

to law enforcement if an attorney is not present

to counsel them. And if suspects have no

prospect of appealing their sentence (through

a habeas corpus petition), the thinking goes,

they will be more likely to confess than if their

case can be appealed.

However, there is good reason to believe that

terror suspects are more likely to cooperate with

authorities if they have attorneys to help them

negotiate a cooperation agreement. In exchange

for helpful information, the state might agree

to forego the death penalty, keep humiliating

information about the detainee from the public,

offer better prison conditions, or not deport

an innocent family member. Without a defense

attorney to negotiate such an exchange,

terrorist suspects may remain in a strictly

antagonistic posture with the state. Court

records and news accounts show that a number

of terror suspects have entered into such

cooperative bargains on the advice of their

attorneys. Bryant Neal Vinas, convicted of

a plot to bomb Penn Station in New York City,

agreed to provide information and act as key

prosecution witness in two terrorism trials in

Europe. David Headley, to avoid extradition

to India, Pakistan, or Denmark, pled guilty

to charges that he conspired to attack a

Danish newspaper that ran cartoons satirizing

the Prophet Mohammed. Other instances


39


of cooperation include Ahmed Ressam, the

would-be “Millennium Bomber,” who offered

copious and invaluable intelligence to security

agents in his attempt to reduce his sentence.

Henry E. Klingeman, a former federal prosecu-

tor who defended Hemant Lakhani advises

terrorism clients in clear terms, “Your defense

here is to get a plea bargain to avoid a life sen-

tence. There is no way you try this case and

win” (Ryan 2010, June 10).

3 . T H E D I S C U R S I V E S T R U G G L E

Lawyers can be so helpful for gaining the coop-

eration of suspects precisely because their

clients are usually more focused on their image

as holy warriors than on how they can help the

state and themselves through cooperation.

Many times, the capture of a terrorist suspect

only represents a shift from violent struggle

with the state to symbolic struggle with the

state. Several terror suspects, consistent with

the deviance and labeling theory of sociologist

Howard Becker (1963) embrace the status

of ‘warrior’ that military commissions confer.

They reject comparisons to petty criminals

implied by trial in traditional criminal courts,

seek to fire their attorneys, and yearn for

symbolic or real martyrdom via military

commission. KSM, most famously, has made

it clear that he would prefer ‘martyrdom’

before a military tribunal over a civilian trial

(Glaberson 2008).

KSM’s declaration was part of a larger commu-

nications strategy seeking to show the state’s


CT efforts to be hypocritical and unjust, and

irhabis’ efforts to identify themselves with a

steadily escalating decades-long war for a more

just world. On the day of his sentencing, the

would-be Times Square bomber Faisal Shahzad

also recited familiar aspects of this irhabi

narrative, declaring himself a “Muslim soldier”

fighting to defend Muslim people and Muslim

lands. When pressed by the judge as to his

willingness to kill women and children, he

replied flatly, “It’s a war” (Weiser and

Moynihan 2010, June 21).

Martial rhetoric was difficult for the U.S. to

avoid immediately after the 9/11 attacks, which

were experienced by the public, commentators,

and policymakers as acts of war. But, martial

legal classifications feed irhabis’ narrative of

a holy war against U.S. tyranny. That framing

of the struggle has had the unintended conse-

quence of reinforcing the image terrorists create

for themselves and deploy in their recruitment

campaigns.

40


Before the 9/11 Commission issued its findings,

policymakers widely assumed that law enforce-

ment and security personnel needed more

powers to prevent terrorist acts. By the end of

2001, they were granted those powers. But the

assumption that law enforcement and security

agencies had been previously constrained is not

supported by evidence available to the public.

According to the government’s own investiga-

tions, the 9/11 attacks resulted from security

agencies’ inability to piece together evidence

of terrorist plotting in Phoenix, Minneapolis,

San Diego, and other cities. Law enforcement

and Intelligence did not need legislation

expanding surveillance powers so they could

gather more information. Rather, they needed

better methods for sharing and evaluating the

intelligence they already had.

The emotionalism of the post 9/11 period has

dissipated sufficiently for policymakers to take

a cold hard look at the evidence for and against

various CT tactics. These tactics should be

disentangled from one another so they can

be evaluated separately. At the same time, CT

efficacy must always be evaluated in context

to ensure not only that it is harmonious with

broader CT strategy but also that it does not

exacerbate the significant signal detection

challenges faced by the intelligence community.

The controversial CT tactics we have reviewed

often undermine the state’s attempts to win

the struggle for legitimacy and the cooperation

of bystanders, play into terrorists’ recruitment

narratives, and produce more informational

noise drowning out terrorists’ signals.

Given the weight of evidence against the

effectiveness of controversial tactics, the people

promoting their use should bear the burden

of proving their efficacy. Unless and until that

happens (and we have not seen good evidence

that it can or will), officials interested in provid-

ing effective security for their people should

forgo the tactics' use and invest their energies

in developing other practices able to improve

CT outcomes.

DISCUSSION AND CONCLUSIONS

41


1. THE FEDERAL GOVERNMENT SHOULD DEVELOP STANDARD METRICS FOR EVALUATING INDIVIDUAL

COUNTERTERRORISM TACTICS AND ACT ON THE RECOMMENDATIONS OF THOSE EVALUATIONS.

For U.S. CT agencies to effectively design and adjust CT approaches effective against an evolv-

ing terrorist threat, they must engage in constant, rigorous evalution. The Government

Performance and Results Act requires all agencies of the U.S. government to set standards and

measurements for their successful performance. But there is no consistent ongoing evaluation

of individual CT tactics for their efficacy. Many evaluations – like the DOJ Inspector General's

review of the FBI's use of more accessible search and surveillance tools -- focus more on the

legality of tactics than their efficacy. In other cases, negative reviews are ignored. The NSA

continues funding its data-mining projects despite the National Academies’ of Science

considered conclusion that they cannot work. And TSA continues SPOT despite GAO reports

on its dubious efficacy.

2. INDEPENDENT INSTITUTIONS SHOULD REGULARLY CONVENE CT EXPERTS TO CREATE RIGOROUS,

PEER-DRIVEN PROCESSES TO EVALUATE CT TACTICS AND STRATEGY AND CREATE EVALUATION

METRICS. The most salient feature of contemporary evaluations of CT tactics is how few there

are, despite the central role they must play in preventing terrorism. Security agencies and/or

charitable foundations should regularly convene independent academics, think tanks, and

government security analysts to discuss and debate critical CT questions. This effort should

also result in greater peer review and perhaps even a refereed journal where these discussions

and debates can take place.

3. POLICYMAKERS AND SECURITY AGENCIES SHOULD UNDERSTAND THE CENTRAL ROLE THAT

COOPERATIVE COMMUNITY RELATIONS PLAY IN UNDERMINING TERRORISTS’ RECRUITMENT

EFFORTS, DISRUPTING THEIR NETWORKS, AND FOILING THEIR PLANS, AND SEEK POLICIES

THAT INCREASE THE LEGITIMACY OF U.S. COUNTERTERRORISM AND MOTIVATE INDIVIDUALS TO

COME FORWARD WITH HELPFUL INFORMATION. Since 9/11, Muslim and Arab Americans have

overwhelmingly cooperated with federal security agencies seeking to investigate and disrupt

plots. But if the state continues to regard these communities with suspicion, it risks escalating

the unhelpful stereotyping of patriotic American citizens and alienating or chilling the support

of perhaps our greatest intelligence asset when it comes to domestic CT security. Many U.S.

government security agencies and officials now seem to appreciate the security threat posed

by the deteriorating relations with affected communities, but our review highlights the need

for more, and more productive, outreach efforts.

RECOMMENDATIONS

42


4. LAW ENFORCEMENT AND INTELLIGENCE AGENCIES NEED TO RESPOND TO THE POOR SECURITY

OUTCOMES OF CURRENT SURVEILLANCE STANDARDS BY ESTABLISHING MORE RIGOROUS

PROTOCOLS FOR CARRYING FORWARD INVESTIGATIONS. Chasing false leads distracts intelligence

agencies from the process of “connecting the dots” so often cited as a challenge for them.

Since expanded surveillance tools allow law enforcement and intelligence agencies to investigate

people without an adequate evidentiary predicate, they need to discipline themselves by setting

better surveillance standards within their organizations. In a similar vein, programs that inun-

date intelligence analysts with information but have shown little success, such as the NSA’s

data-mining efforts, should be terminated so that they no longer distract resources and attention

from proven CT methods.

5. MORE UNIVERSAL SCREENING METHODS SHOULD BE IMPLEMENTED IN AIRPORTS, GIVEN THEIR

EFFECTIVENESS SINCE 9/11 IN PREVENTING ATTACKS. Given that terrorist groups have avoided

heightened airport screening by recruiting new members who do not fit CAPPS (or ‘Secure

Flight’) profiles, DHS and the TSA need to universally apply the highest available levels of

screening to all passengers. Universal screening for liquids and metal have already made it more

difficult for terrorists to either bring, or effectively detonate, bombs on planes, as the botched

bombing attempts of the shoe bomber and the Christmas Day bomber demonstrate. Minimally-

invasive full body scanners can pose an even more effective barrier. TSA should install these

scanners as quickly as possible and also consider greater implementation of randomized and

unseen screening methods – which cannot be reverse-engineered by terrorists – if they continue

to distinguish passengers for secondary screening.

6. IMPROVE INTERROGATION PROTOCOLS THROUGH RESEARCH AND TRAINING PROGRAMS.

Interrogation is a critical opportunity for intelligence-gathering, but it remains more of an art

than a science despite great improvements in understanding human motivation over the last

thirty years. The present administration has taken an important step forward by creating

a High-Value Interrogation Group, a team of highly-trained interrogators, to be used with high-

value detainees. However, we recommend further steps like those proposed by Air Force reserve

Colonel and former interrogator in Iraq, Stephen Kleinmann. He has called for “a new intelli-

gence agency or sub-agency devoted solely to interrogation — sponsoring research, conducting

training and building a team of sophisticated interrogators with linguistic and psychological

skills” (Shane 2008, March 9) (emphasis added).

D ISCUSS ION AND CONCLUS IONS


43

We wish to thank the many scholars,

researchers, journalists, and government

analysts whose work we have drawn on in

completing this research. This paper was

possible thanks to the generous support of

the Lotus Foundation and the Open Society

Institute. We thank them not only for funding

this research but also for encouraging our

independence in the process. We would also

like to thank our many colleagues who have

offered us comments and criticisms that have

helped to improve the paper. We are especially

indebted to Mike German, Martha Crenshaw,

Tom Parker, Gary Ackerman, Lisa Graves,

Graham Allison, Kate Martin, Peter Bergen,

Heather Hurlburt, Matt Bennett, Jameel Jaffer,

Karen Greenberg, Suzanne Spaulding,

Joshua Dratel and Anthony Romero for their

helpful engagement. While we very much

appreciate their counsel and collegiality,

we, of course, take full responsibility for any

errors in the work.

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46


ENDNOTES

1 Means employed to block terrorist financing have been applied in overbroad fashion

at times, placing significant burden on Islamic charities. But experts widely support

the goal of denying terrorists money they can use to execute operations.

2 As FBI Special Agent George Venezuelas said in a press conference after Faisal

Shazhad’s failed Times Square bombing attempt: “It’s the tips from the public that

really disrupt these terrorist plots.”

3 There is an ongoing debate about which term is most appropriate for referring to the

loose network of political Islamists employing terrorism against western targets.

Using ‘global jihadists’ offers terrorists their preferred label of ‘holy warriors.’ ‘Al

Qaeda’ is inappropriate in so far as terrorists are not the coherent global organiza-

tion that name implies. Calling disparate terrorists ‘Al Qaeda’ serves to concretize

their narrative power. The term ‘militant Islamists,’ has its own drawbacks. First, lay

audiences often inaccurately link the term directly to Islam as it is peacefully prac-

ticed by hundreds of millions of people around the world, failing to understand that

the term refers to exceedingly rare men and women who violently pursue a funda-

mentalist marriage of Islam and the state called ‘political Islam.’ Second, it is not

clear that every ‘Islamist’ group (violent or not) is really as fundamentalist as they

appear. Many may be using Islamic tropes as a way to voice other (sometimes

democratic or populist) agendas that are formally banned by their relatively authori-

tarian regimes. We choose the term ‘irhabis,’ Arabic for ‘terrorists,’ to refer to

terrorists who kill in the name of (some narrow and distorted interpretation of)

Qu’ran (a text written in Arabic). Researchers might also refer to their struggle not as

‘jihad,’ but as ‘Hirabah,’ Arabic for ‘unholy war.’ For other, appropriate terms, refer to:

http://smallwarsjournal.com/blog/2007/03/words-have-meaning/

4 Brian Michael Jenkins of RAND writes: “The volume of domestic terrorist activity

was much greater in the 1970s than it is today. That decade saw 60 to 70 terrorist

incidents, most of them bombings, on U.S. soil every year—a level of terrorist activ-

ity 15 to 20 times that seen in most of the years since 9/11, even counting foiled

plots as incidents. And in the nine-year period from 1970 to 1978, 72 people died in

terrorist incidents, more than five times the number killed by jihadist terrorists in the

United States in the almost nine years since 9/11” (Jenkins 2010, viii)

5 While at least some of that financial activity has shifted to the traditional, informal,

and difficult-to-trace ‘hawala’ money transfer system, the original crackdown did

result in at least two prosecutions of Al Qaeda financiers, the chilling of support for

Islamic charities that might funnel money to radical Islamists, and later, the prosecu-

tion of scores of many (non-terrorist) hawala bankers in the U.S.

6 The effectiveness of these international efforts is somewhat disputed, but experts on

threat assessment point out that building nuclear, chemical, and biological weapons

is extremely difficult (Mueller and Center 2008; Leitenberg 2005).

7 As part of the USA PATRIOT Act of October, 2001.

8 One of the key problems with information sharing, yet to be fully overcome, stems

from the perverse incentives of the intelligence community, which reward individuals

for marshalling important information at the right time. If the information is broadly

shared before it is clearly valuable, individuals may miss out on opportunities for

praise and promotion. See Lee and Rao (2007) for a thorough discussion of the

causes and effects of inter-agency information sharing.

9 Many have blamed a 'wall' between foreign intelligence investigations and domestic

criminal investigations for the FBI's pre-9/11 failure to attain search and surveillance

warrants for Zacarias Moussaoui. They argue that the Office of Intelligence Policy

Review (OIPR) under Janet Reno's DOJ laid the foundation for that 'wall' in a series

of bureaucratic memos that held little official weight but confused FBI officials seek-

ing to remain on the proper side of FISA's "primary purpose" clause. However,

others have persuasively argued that the "wall" debate was motivated by FBI offi-

cials' desires to excuse what was actually a failure to recognize the threat posed by

Moussaoui. FISA warrants have been famously easy to obtain, even with the over-

sight of OIPR. Thousands have been approved since 1978 while only a handful

have been denied. And the evidence FBI field agents had acquired on Moussaoui at

the time would have been sufficient for a Title III or FISA warrant. It appears,

instead, that FBI headquarters, in rejecting the Minneapolis field office's request to

file a warrant application, simply failed to recognize the threat Moussaoui posed.

10 In “Ordinary Measures Extraordinary Results,” Difo shows that controversial CT

tactics have been used in only a small number of cases. Our closer analysis of

those particular cases shows that the techniques were not in fact decisive for their

outcomes.

11 It is possible that secret FISA or NSA surveillances were used in these or other

investigations that resulted in foiled plots. However, there is little reason to believe

that the post-9/11 changes to FISA would have made a difference in the course or

outcome of these investigations. After 9/11, FISA language was altered to require

that a "significant purpose" of a FISA surveillance was the gathering of foreign intel-

ligence instead of the "primary purpose." Despite the change in language, though,

federal courts have rejected opportunities to distinguish between the two standards

(see U.S.A. v. Stewart, re Sealed Case, and U.S.A. v. Abu Jihaad for examples of

post-FISA-amendment case law). Furthermore, FISA courts (FISCs) have continued

to approve nearly all FISA applications with little or no objection. Thus, for all practi-

cal purposes FISA operates the same now as it did pre-PATRIOT. There is no public

evidence describing the use of warrantless NSA surveillances in any of the investi-

gations that resulted in foiled plots. We address NSA's programs below, but also

note here that many of their surveillances appear to entirely duplicate FISA's func-

tion while avoiding the oversight of any external body (e.g. FISC). There is ample

reason to believe that such low or non-exitstent evidentiary standards for pursuing

such surveillances result in the pursuit of weak leads and the collection of informa-

tional noise that may distract investigators from terrorist signals.

12 Both the 9th and 2nd District Courts ruled in U.S. v. Freitas (1988) and U.S. v. Ville-

gas (1990), respectively, that ‘delayed notification’ searches were permissible in

cases where probable cause was evident and notification of the search would have

disallowed investigators from gathering the evidence they needed to build their

cases. So-called “sneak and peek” privileges were appended to standard probable

cause warrants and constitutionally validated in several subsequent drugs cases.

The PATRIOT ACT merely formalized these rules.

13 The state has long encouraged police to be discerning about who they would inves-

tigate and how aggressively they would pursue evidence. It was common law

practice, in the Anglo-American tradition, that a constable would punish a person for

‘trespass’ if his allegations compelled the constable to enter the home of some inno-

cent third party. This practice prevented the wasting of the constable’s time with

pointless investigations and protected his own reputation as someone who did not

frivolously and unfairly breach the sanctity of the home (Kaplan 1961). As states

bureaucratized and modernized their police forces, they placed similar restrictions

on their own investigators to ensure that they did not waste their time pursuing

unsubstantiated allegations. Thus the professionalizing police forces of the 18th and

19th centuries were usually required to seek permission from a ‘magistrate judge’

before surveilling a person, searching his private belongings, or seizing any of his

property. The U.S. Constitution reflected these emerging norms and citizens’ expec-

tations about their privacy in the Fourth Amendment.

14 NSLs had been used before the PATRIOT Act but only against targets or subjects

of an ‘authorized investigation’ into violent criminality or terrorism. The PATRIOT

Act and a redefinition of the parameters of NSL-usage by then Attorney General,

John Ashcroft, has expanded their use for even ‘preliminary inquiries’ into American

citizens who have not been implicated in criminal or terrorist activity by probable

cause evidence.

15 http://www.ice.gov/pi/specialregistration/index.htm

16 Like any security measure, full-body scanners are imperfect and may not detect

weapons hidden in body cavities. They do, however, increase the burden of opera-

47

tionalizing terrorist weapons while denying terrorists an easy second-tier security

screening.

17 In seeking to offer and present a dispassionate evaluation of security measures’ effi-

cacy, we choose to avoid the use of the term ‘torture,’ which bears more legal and

moral connotation than we wish to consider here.

18 The Department of Defense undertook its own parallel coercive interrogation regime

that resulted in at least a dozen deaths and the infamous abuses of Abu Ghraib

detainees. The DOD regime is widely regarded as a failure. So, for the sake of clar-

ity and charitable inquiry, here we only evaluate the coercive interrogation regime

authorized by the Bush Administration and used by the CIA - an interrogation regime

still advocated by some.

19 These ten are addressed in Bybee’s memos to both the CIA General Counsel and

the White House Counsel. For more details on each method, see pages 2-4 of

either memo (available at http://www.aclu.org/accountability/olc.html).

20 On FOX News broadcast of “The Sean Hannity Show”. April 2009

21 Jose Padilla may have suffered these effects after his extended period of isolation

and sensory disorientation.

22 Muhammad Khatani, under the duress of sleep-deprivation and sensory disorienta-

tion, for instance, reported that thirty of his fellow Guantanamo detainees had been

bodyguards for Osama bin Laden, charges that he later recanted and most experts

agree were false.

23 http://www.politifact.com/truth-o-meter/statements/2010/feb/12/barack-

obama/obama-claims-bush-administration-got-190-terrorism/

24 The sheer quantity of prosecutions and convictions is not a clear indicator of suc-

cess or failure. There was an overuse of “terrorism-related” charges after 9/11 that

may have distracted investigators and prosecutors from the most important cases.

Of the 190 terrorism federal court prosecutions related to irhabi movements, fewer

than a dozen stemmed from serious terrorism incidents. But those who believe that

“experience is the best teacher” might prefer the more experienced Article III courts

for terrorism cases.

25 For instance, while severely sleep deprived and disoriented, Muhammed Khatani

accused thirty separate Guantanamo inmates of being Osama bin Laden’s

bodyguard.

26 Bin Laden’s driver, Salim Hamdan, was sentenced to 5 years and 6 months in mili-

tary commission for offering material support to a terrorist organization, while Ali

Asad Chandia was convicted for the same crime and sentenced to 15 years by a

civilian court. David Hicks, tried by military tribunal for crimes very similar to those of

John Walker Lindh, was sentenced to 7 years in prison. Lindh, prosecuted in a civil-

ian court was sentenced to 20 years. (See Center for American Progress Report:

“Criminal Courts are Tougher on Terrorists than Military Detention”)

27 For more on CIPA, see http://fas.org/sgp/crs/secrecy/89-172.pdf

ENDNOTES


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59

¢ DETENTION AND PROSECUTION

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